Administrative Static Podcast: Recent Episodes
Administrative Static
Administrative Static is an irreverent legal affairs podcast that exposes the unlawful side of administrative power. Hosts Mark Chenoweth and John Vecchione will decry federal and state agency abuses, trot out legal arguments, grill expert guests, and bandy about the latest cases and controversies.
NCLA has filed for summary judgment in Flint Avenue v. Department of Labor, urging the Northern District of Texas to strike down a new DOL rule that exceeds its authority. The rule sets a $58,656 minimum salary for exempting “white collar” employees from FLSA’s wage and overtime requirements, impacting millions of workers nationwide.
The rule would force employers to raise salaries or reclassify employees as hourly, limiting flexible work options. Flint Avenue, LLC, a small software company, faces losing its ability to offer perks like unlimited vacation. Tune in to hear Mark and Vec dive into this critical case.
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Join Mark and Vec as they explore NCLA’s latest legal challenge in Colt & Joe Trucking v. U.S. Department of Labor. NCLA is fighting to overturn DOL’s new rule, which makes it harder for businesses to classify workers as independent contractors, potentially leading to increased FLSA liabilities for small businesses.
This episode dives into issues with the rule, including its vague standards and the controversy surrounding Acting Labor Secretary Julie Su’s authority to enforce it. Tune in to learn more about this crucial case.
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NCLA, with its founder Professor Philip Hamburger, has filed a crucial amicus curiae brief in the case of New York v. Donald Trump. They are challenging a New York law used by Attorney General Letitia James to prosecute Trump for alleged fraud. Unlike typical fraud cases, New York Executive Law § 63.12 allows for penalties simply for making incorrect business statements, without needing to prove intent or harm.
NCLA argues that this law infringes on First Amendment rights and is urging the court to overturn it to safeguard free speech for everyone. In this episode, Mark, Vec, and Senior Litigation Counsel Greg Dolin discuss the case and its broader implications.
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The U.S. Court of Appeals for the Federal Circuit has reversed a decision by the U.S. Court of Federal Claims, bringing new momentum to the Darby Development Company v. U.S. case. This pivotal ruling challenges the CDC’s nationwide eviction moratorium as a potential violation of the Fifth Amendment’s Taking Clause, demanding just compensation for property owners.
Join Mark and Vec as they discuss this landmark decision with NCLA Senior Litigation Counsel Greg Dolin. Tune in to explore the implications of this ruling and what lies ahead for the case.
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In its latest student loan legal challenge, NCLA has filed an amicus curiae brief in the case of Alaska, South Carolina, and Texas v. Department of Education before the U.S. Court of Appeals for the Tenth Circuit. NCLA is pushing for the Court to uphold and expand a preliminary injunction against the Department’s "SAVE" plan, which unlawfully alters the 1993 Higher Education Act amendments to transform authorized student-loan-repayment plans into unauthorized loan-cancellation schemes—costing taxpayers $475 billion. With support from the Cato Institute and the Mackinac Center for Public Policy, NCLA argues for halting this overreach of Executive Branch power.
Vec and Jenin discuss the case in this episode.
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In a significant victory for constitutional order, the en banc U.S. Court of Appeals for the Fifth Circuit has ruled in Consumers’ Research v. Federal Communications Commission that Congress unlawfully delegated legislative power to the FCC, allowing it to control the Universal Service Fund (USF). NCLA played a pivotal role in this outcome, filing an amicus curiae brief that highlighted the legal flaws in the FCC's authority.
Join Vec and NCLA General Counsel and Senior Litigation Counsel Zhonette Brown as they delve into this decision, its implications for the FCC, and what it means for American taxpayers.
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Join Jenin and Vec, along with NCLA's Casey Norman, as they unpack the explosive case of Nephtalí De León, a celebrated Chicano writer and activist wrongfully terminated from his position as San Antonio’s poet laureate. NCLA has filed a Complaint against the City of San Antonio and city employee Krystal Jones, alleging De León's firing violated his First Amendment rights after he was defamed for a supposed "racial slur" in an elegy honoring a Chicano writer-activist.
Discover how the City’s actions not only tarnished De León’s reputation but also undermined his lifelong fight against racial injustice. Tune in to explore the legal battle to restore his good name and what this case means for free speech in America.
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Governor Gavin Newsom recently announced his intention to sign new legislation targeting the use of artificial intelligence in campaign ads, following a viral altered ad of Vice President Kamala Harris reposted by Elon Musk. The proposed law would mandate social media companies to remove deepfake content featuring political candidates 120 days before an election, placing the responsibility on these platforms to monitor and enforce the rules.
In this episode, Vec and Jenin delve into the potential First Amendment implications of such laws.
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In a recent ruling, a Delaware judge dismissed Nina Jankowicz’s lawsuit against Fox News. The judge found that the alleged defamatory statements about Jankowicz—former head of the DHS disinformation board—were either focused on the board itself or were materially true. Jankowicz had claimed Fox falsely accused her of wanting to censor speech and edit tweets. This case has important implications for discussions on disinformation and social media censorship, touching on themes similar to the NCLA's Murthy v. Missouri case.
Tune in as Mark and Vec break down the details and impact of this significant legal development.
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NCLA is challenging the U.S. Consumer Product Safety Commission for its misleading and harmful claims about Dreamland Baby Co.'s weighted sleep products. Our formal demand for a retraction addresses Commissioner Richard Trumka's unfounded warnings and the CPSC’s failure to follow proper procedures before making safety claims. Discover how we’re pushing back against these unjust actions and ensuring that government agencies adhere to the law.
Join Litigation Counsel Kara Rollins, Vec, and Mark as they explore this pivotal battle for legal integrity and consumer rights.
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NCLA is taking a stand in Bristol Myers Squibb Company v. Becerra! We've filed an amicus curiae brief with the U.S. Court of Appeals for the Third Circuit, challenging the Department of Health and Human Services' (HHS) attempt to hold a company’s business hostage to force it to give up its constitutional property rights. Our brief argues that this violates the “unconstitutional conditions” doctrine, which protects against indirect violations of constitutional rights.
Tune in as NCLA Senior Litigation Counsel joins Mark and Vec to break down this critical legal battle and its broader implications.
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NCLA has filed an amicus curiae brief urging the Supreme Court to hear Consumers’ Research v. Consumer Product Safety Commission. This case presents a golden opportunity to overturn the 1935 Humphrey’s Executor v. Federal Trade Commission decision and address the unconstitutional structure of the CPSC. Under current law, the President can only fire CPSC commissioners “for neglect of duty or malfeasance in office,” insulating them from removal and violating the “Take Care” clause of Article II of the Constitution. The Fifth Circuit upheld this structure by invoking Humphrey’s Executor, which wrongly supported FTC Commissioners' similar protections.
In this episode, Senior Litigation Counsel Greg Dolin joins Mark and Vec to dive into the details and implications of this case.
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NCLA is fighting back against the Department of Education’s $475 billion “SAVE” plan, which illegally shifts student loan debt to taxpayers! The plan rewrites the Higher Education Act in ways Congress never approved. After a divided Tenth Circuit panel lifted a crucial injunction against this scheme, NCLA has teamed up with the Cato Institute, Mackinac Center, and Defense of Freedom Institute to challenge this unconstitutional overreach.
Join Mark, Vec, and Jenin as they dive into this explosive case and the battle to stop executive overreach!
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NCLA is taking on government censorship once more! In Dressen v. Flaherty, we're challenging the federal government’s collusion with social media giants and the Stanford Internet Observatory’s Virality Project to censor online support groups for COVID-19 vaccine injuries, echoing our fight in Murthy v. Missouri.
Join NCLA’s Casey Norman with Mark, Jenin, and Vec as they explore this critical case and the fight to restore the plaintiffs' civil liberties.
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NCLA’s amicus brief in Mohamud v. Weyker takes on a dangerous trend of courts shielding cross-deputized officers from accountability. This critical case argues that Americans should still have the right to pursue damages for constitutional violations, even when officers are operating under both state and federal authority.
In this episode, Mark, Vec, and Jenin are joined by NCLA’s Casey Norman to unpack the implications of this high-stakes legal battle and how this case is pivotal for holding law enforcement accountable.
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The U.S. Court of Appeals for the Tenth Circuit has overturned David Lesh’s criminal conviction, declaring that the USFS regulation banning “work activity” on their lands was too vague. Lesh’s crime? Posting photos on Instagram!
In this episode, Jenin, Mark, and Vec delve into the case with NCLA’s Kara Rollins, exploring the ruling's implications and debating whether the petty offense exception needs a constitutional overhaul.
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The U.S. Supreme Court decided 6-3 to overturn the 1984 Chevron v. NRDC case, ending the unconstitutional Chevron doctrine. This landmark ruling came in NCLA’s case, Relentless Inc. v. Dept. of Commerce, argued alongside Loper Bright Enterprises v. Raimondo. The Court vacated the First Circuit’s decision upholding NOAA’s rule requiring fishing companies to pay for at-sea government monitors.
In this episode, Mark, Vec, and Jenin continue to discuss this case and celebrate this monumental victory that NCLA has been fighting since the beginning!
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The U.S. Supreme Court decided 6-3 to overturn the 1984 Chevron v. NRDC case, ending the unconstitutional Chevron doctrine. This landmark ruling came in NCLA’s case, Relentless Inc. v. Dept. of Commerce, argued alongside Loper Bright Enterprises v. Raimondo. The Court vacated the First Circuit’s decision upholding NOAA’s rule requiring fishing companies to pay for at-sea government monitors.
In this episode, Mark, Vec, and Jenin celebrate this monumental victory, which will curtail administrative power abuses for years to come!
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The U.S. Supreme Court revived Corner Post’s lawsuit challenging a Federal Reserve regulation, ruling 6-3 that the six-year limit for challenging the rule had not expired when the North Dakota convenience store filed suit in 2021. Agreeing with NCLA's amicus brief, the Court determined the statute of limitations should start when Corner Post began operating in 2018, despite the rule being issued in 2011. This decision allows for meaningful judicial review of regulations, even for new businesses.
In this episode, Mark, Vec, and Jenin discuss the case and the win.
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The U.S. Supreme Court has restored the right to a jury trial for Americans facing the Administrative State by affirming the Fifth Circuit’s decision in SEC v. Jarkesy.
This overturned the SEC’s unconstitutional administrative prosecution regime, which targeted George R. Jarkesy, Jr. in a lengthy administrative proceeding without a jury.
The Court, agreeing with NCLA's brief, ruled 6-3 that the SEC violated Jarkesy’s Seventh Amendment rights.
In this episode, Mark, Vec, and Jenin are joined by Senior Litigation Counsel Peggy Little to discuss and celebrate this historic victory vindicating Americans’ civil liberties.
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The U.S. Supreme Court, in a 6-3 decision, overturned a significant preliminary injunction granted by the Fifth Circuit in Murthy v. Missouri, ruling that the parties protected by the injunction lacked standing for future relief. The injunction had prevented officials from the White House, CDC, FBI, CISA, and the Surgeon General’s office from urging social media platforms to censor constitutionally protected speech. The New Civil Liberties Alliance, representing Drs. Jayanta Bhattacharya, Martin Kulldorff, and Aaron Kheriaty, and Ms. Jill Hines, expresses disappointment over the Court's decision, which narrows Americans' First Amendment rights.
Mark, Vec, and Jenin discuss where the Justices stood on this ruling in this latest episode.
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The U.S. Supreme Court, in a 6-3 decision, overturned a significant preliminary injunction granted by the Fifth Circuit in Murthy v. Missouri, ruling that the parties protected by the injunction lacked standing for future relief. The injunction had prevented officials from the White House, CDC, FBI, CISA, and the Surgeon General’s office from urging social media platforms to censor constitutionally protected speech. The New Civil Liberties Alliance, representing Drs. Jayanta Bhattacharya, Martin Kulldorff, and Aaron Kheriaty, and Ms. Jill Hines, expresses disappointment over the Court's decision, which narrows Americans' First Amendment rights.
Vec and Jenin discuss the ruling in this latest episode.
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The U.S. Supreme Court upheld the right to a jury trial for Americans facing administrative proceedings, striking down the SEC’s administrative prosecution regime. The Court affirmed the Fifth Circuit’s decision in SEC v. Jarkesy, ruling 6-3 that the SEC violated George R. Jarkesy Jr.’s Seventh Amendment rights by using an Administrative Law Judge without a jury. This decision, aligning with the New Civil Liberties Alliance’s amicus brief, marks a significant victory for civil liberties and limits the SEC’s abuse of power.
Mark, Vec, and Jenin continue to discuss the win in this episode and dig into an interesting footnote.
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The U.S. Supreme Court upheld the right to a jury trial for Americans facing administrative proceedings, striking down the SEC’s administrative prosecution regime. The Court affirmed the Fifth Circuit’s decision in SEC v. Jarkesy, ruling 6-3 that the SEC violated George R. Jarkesy Jr.’s Seventh Amendment rights by using an Administrative Law Judge without a jury. This decision, aligning with the New Civil Liberties Alliance’s amicus brief, marks a significant victory for civil liberties and limits the SEC’s abuse of power.
Mark, Vec, and Jenin celebrate the victory in this latest episode.
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As we anticipate the Supreme Court's decision in Murthy v. Missouri, NCLA's Jenin Younes has filed a motion in district court citing Congressional testimony revealing that Senior Advisor Dr. David Morens and Dr. Anthony Fauci used personal email accounts to evade Freedom of Information Act (FOIA) requests during the pandemic.
Mark and Jenin delve into the details of this motion in their latest episode.
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NCLA has filed a joint opening brief in National Center for Public Policy Research v. SEC, urging the U.S. Eighth Circuit Court of Appeals to strike down new SEC rules requiring extensive climate-related disclosures by public companies. This challenge is combined with U.S. Chamber of Commerce v. SEC, where Gibson Dunn & Crutcher LLP represents the petitioners. NCLA represents the National Center for Public Policy Research alongside the U.S. Chamber of Commerce, Texas Association of Business, and Longview Chamber of Commerce, arguing against the SEC's unconstitutional push for climate activism at the expense of civil liberties.
Mark, Jenin, and Senior Litigation Counsel Andrew Morris discuss the case in their latest episode.
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NCLA has filed an amicus curiae brief urging the Supreme Court to consider Chestek PLLC v. Vidal and prevent the U.S. Patent and Trademark Office from bypassing notice-and-comment rulemaking. It is crucial that rules with significant economic impact are not issued without public input or consideration of all relevant information. The U.S. Court of Appeals for the Federal Circuit's decision below was erroneous as it effectively nullified a statute requiring the PTO to undergo notice-and-comment procedures before establishing rules. NCLA seeks Supreme Court intervention to correct this and reinstate the PTO's mandated accountability to the public.
In their latest episode, Mark, Jenin, and Senior Litigation Counsel Greg Dolin discuss the details of the amicus brief.
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NCLA has submitted an opening brief in Powell, et al. v. SEC, urging the U.S. Court of Appeals for the Ninth Circuit to overturn the SEC’s refusal to amend its long-standing "Gag Rule." The rule, in place for over five decades, prohibits individuals who settle regulatory enforcement cases with the SEC from publicly criticizing their cases, even truthfully, for life. NCLA represents SEC enforcement targets affected by this rule and media organizations seeking to report on their experiences.
After NCLA's initial petition challenging the Gag Rule was ignored for more than five years, the SEC only responded with a denial after NCLA filed a renewed petition in December. NCLA is now challenging this denial to stop the SEC from infringing on First Amendment rights.
Mark, Jenin, and Senior Litigation Counsel Peggy Little discuss the case and the detrimental impact of the SEC's Gag Rule.
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The U.S. Court of Appeals for the Tenth Circuit has reversed a district court decision in Johnson v. Smith that upheld a Kansas state law authorizing intrusive warrantless searches for dog training and handling businesses.
NCLA filed an amicus curiae brief explaining that the warrantless-search law infringes the Appellants’ Fourth Amendment rights “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” While the Tenth Circuit affirmed the district court’s dismissal of the Appellants’ claim that the state law violates their right to travel, it remanded the case to the lower court to determine whether the Fourth Amendment authorizes warrantless searches of dog training and handling businesses—the issue we briefed.
In this episode, Mark and John celebrate the win and discuss the case
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The U.S. Supreme Court issued an 8-1 decision in Starbucks Corp. v. McKinney, overturning a deferential legal standard that has allowed the National Labor Relations Board (NLRB) to enjoin a company’s conduct without showing that it likely broke the law.
Justice Thomas authored the Court’s opinion. Justice Jackson provided a ninth vote, concurring in the judgment, but dissenting in part at a length greater than the majority decision. The Court held that federal courts may not issue preliminary injunctions unless the NLRB meets four requirements: (1) it is likely to succeed on the merits; (2) it would suffer irreparable injury absent an injunction; (3) the balance of equities favors an injunction; and (4) an injunction serves the public interest.
Today’s decision overrules the five federal circuits that have been applying a relaxed standard when NLRB seeks a preliminary injunction, permitting it to punish an employer based on legal and factual allegations that are most likely meritless. In this episode, Mark, John, and Jenin discuss celebrate the victory and discuss the case.
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The U.S. Supreme Court has ruled 6-3 in the NCLA case of Garland v. Cargill that the Bureau of Alcohol, Tobacco, Firearms and Explosives’ unilateral bump-stock ban conflicts with the federal statute defining “machineguns.”
ATF’s regulatory ban, which the U.S. Court of Appeals for the Fifth Circuit shot down early last year, reversed the agency’s own long-standing recognition that bump-stock-equipped firearms are not machine guns.
NCLA commends the high court for permanently setting ATF’s ban aside, safeguarding the rights of our client Michael Cargill and hundreds of thousands of other Americans to be free from laws written by executive branch bureaucrats instead of elected members of Congress.
Mark, John, and Jenin celebrate this victory and dive into the case and the meaning of "machineguns" in this latest episode.
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We awarded Drs. Azadeh Khatibi, Tracy Høeg, Ram Duriseti, Aaron Kheriaty, and Pete Mazolewski NCLA’s Award for Client Bravery. NCLA represented these courageous doctors in the successful Høeg v. Newsom suit challenging a California state law that would have subjected them to discipline for sharing information with patients that departed from the “contemporary scientific consensus” on Covid-19. Gov. Newsom signed a bill to repeal the law, marking a major victory for our clients, free speech, and medical liberty.
NCLA also presented a “Georgie” award (a bust of George Washington) to Latham & Watkins partner Roman Martinez for outstanding service to NCLA and our clients. He delivered oral argument to the Supreme Court in January in our Relentless Inc. v. Dept. of Commerce case against the unconstitutional Chevron doctrine.
The Buckeye Institute Director of Litigation David Tryon and Legal Fellow Alex Certo took home the Georgie for Best Amicus Brief, while A. Gregory Grimsal received the Best Local Counsel Award.
NCLA recognized the winner of its Student Note Competition, Matthew Lambertson of the University of Florida’s Levin Law School, who earned a $10,000 prize to be split with the Florida Law Review for his illuminating publication entitled: “The Common Law and SEC Rule 10b-5(b): Narrowing the Securities ‘Fraud’ Exception to the First Amendment.”
Finally, NCLA honored newly retired former Senior Litigation Counsel Richard Samp with the Cincinnatus Award, celebrating his illustrious 30-plus-year career defending justice in our Republic.
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The U.S. Court of Appeals for the Fifth Circuit issued a decision in National Association of Private Fund Managers v. Securities and Exchange Commission vacating SEC’s recent final rule restricting—and in some cases prohibiting—certain common contractual agreements between private investment funds and investment advisers.
Following the New Civil Liberties Alliance amicus curiae brief’s advice, the Court declared that SEC exceeded its statutory authority in promulgating the unlawful rule because Congress never gave SEC oversight of this aspect of private funds. NCLA thanks securities law scholars Paul Mahoney, Adam Pritchard, and J.W. Verret for joining in NCLA’s brief as amicus partners.
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We discuss Mark's recent column in Forbes: a brief review of five pending SCOTUS cases: (1) SEC v. Jarkesy; (2) Relentless v. Department of Commerce/ Loper Bright v. Raimondo; (3) Corner Post v. Board of Governors of the Federal Reserve; (4) Garland v. Cargill; and (5) Starbucks v. McKinney.
Administrative statists have floated a false narrative about the many indisputably important administrative law cases pending at the U.S. Supreme Court this term. With at least half a dozen such cases still awaiting decision by month’s end, it promises to be a watershed year.
Greater freedom and constitutional restoration appear to be in the offing, which may explain the liberal meltdown that has already begun. Before the Supreme Court (erroneously) upheld the Consumer Financial Protection Bureau’s funding mechanism last month, some commentators on the left were proclaiming that a decision leaving Congress to appropriate annual funds to the CFPB would trigger a second Great Depression.
Similarly absurd claims have abounded about the remaining undecided cases, so it is time to set the record straight lest bureaucratic caterwauling lead the Court further astray.
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The New Civil Liberties Alliance sent a letter informing Dr. Anthony Fauci, his Senior Advisor Dr. David Morens, Dr. Peter Daszak, Dr. Gerald Keusch, Dr. Richard Roberts, Dr. Francis Collins, and Google that they are legally obligated to preserve all documents, communications, and electronically stored information related to their official government business.
NCLA represents 4 of the 5 individual plaintiffs in the Murthy v. Missouri case with an appeal from the grant of a preliminary injunction now pending before the U.S. Supreme Court. Dr. Fauci and other government defendants violated our clients’ First Amendment rights through involvement in censoring their speech on social media that was not in line with the government’s position of Covid-19 and related issues.
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The Fulbright-Hays Fellowship supports U.S. students conducting foreign language research abroad. However, since 1998, the Department of Education has unfairly penalized "non-native-born" students who learned the language through heritage, denying them 15 points out of 105 for language proficiency. Samar Ahmad and Edgar Ulloa Lujan, fluent in Arabic and Spanish respectively, faced penalties despite their proficiency. This discrimination contradicts the fellowship's purpose and violates students' due process rights.
NCLA filed Edgar Ulloa Lujan, Samar Ahmad, and Veronica Gonzalez v. U.S. Department of Education, et al. challenging the "native language penalty." This rule unfairly discriminates against American citizens from non-English-speaking countries and their children, barring them from the Fulbright-Hays Fellowship based on their national heritage language.
In this episode, NCLA's Sheng Li joins Mark and Vec to discuss this case.
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The Select Subcommittee on the Coronavirus Pandemic probes into inflammatory emails authored by a top adviser to Fauci. David Morens, a seasoned federal scientist currently on administrative leave, admitted to deleting emails and using a personal account to avoid disclosing correspondence under the Freedom of Information Act.
Join Mark, Vec, and Jenin as they dissect this hearing in the latest episode.
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NCLA submitted comments urging the U.S. Department of Education to abandon its latest proposed rule that would unconstitutionally cancel $147 billion of federal student loan debt owed to the Treasury by an estimated 27.6 million borrowers. The plan even proposes to bestow about $19 billion of that on about 750,000 student loan debtors whose average annual household income exceeds $300,000! Outrageously, that sum means American taxpayers would give more than $25,000 apiece to debtor households making over $300,000 per year. Congress has repeatedly declined to erase such debt, and the Department of Education lacks legal authority to do so unilaterally.
NCLA calls for an end to this latest Biden Administration attempt at subverting the rule of law to erase student loan debt.
NCLA's Sheng Li joins Mark, Vec and Jenin to discuss the comments.
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The U.S. Supreme Court unanimously ruled in NRA v. Vullo that the National Rifle Association plausibly accused New York Department of Financial Services Superintendent Maria Vullo of violating its rights to free speech and association. In so doing, it reversed a panel of the U.S. Court of Appeals for the Second Circuit, which had held Vullo’s alleged actions amounted to permissible government speech and enforcement of state law.
NCLA filed an amicus brief, urging the Justices to decide NRA’s complaint stated a claim upon which relief against Vullo’s unconstitutional conduct, if proven, could be granted.
In this episode, Mark, Vec, and Jenin discuss the victory.
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NCLA's Fourth Annual King George III Prize is coming to a close! This campaign highlights the most egregious violations of our basic civil liberties by those responsible for such abuses.
In the spirit of March Madness and King George, we are hosting two tournament brackets: one featuring 16 nominees from state and federal agencies and officials who committed the worst civil liberties abuses in 2023, and another devoted exclusively to 16 state and federal officials who focused on censorship and violating the First Amendment in 2023.
In the Censorship Championship, it's Mayorkas vs. Blinken, while Cardona and Regan go head-to-head in the Runaway Regulator Championship.
In this episode, Mark and Jenin discuss the award and our finalists.
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NCLA President Mark Chenoweth recently attended the Fifth Circuit Judicial Conference in Austin, TX, where he served as a panelist in a discussion on constitutional challenges to the administrative state and upcoming developments in this area. The panel was so widely attended that the conference scheduled it twice!
In this episode, Mark discusses the conference and its highlights with Jenin.
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The Supreme Court recently issued its opinion in Harrow v. Department of Defense. In this case, the Court reviewed a judgment from the Federal Circuit, which originally stemmed from a decision by the Merit Systems Protection Board. The Federal Circuit had held that the 60-day statutory deadline for Harrow to file his petition for review was a “jurisdictional requirement” and thus “precludes equitable exceptions.”
In a unanimous decision authored by Justice Kagan, the Supreme Court vacated and remanded the Federal Circuit's judgment. The Court held that the 60-day deadline is not a jurisdictional requirement and therefore does not preclude equitable exceptions.
In this episode, Mark and Jenin discuss how this decision could affect Metal Conversion Technologies, LLC v. United States Department of Transportation, a case for which the NCLA has filed a cert petition.
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Congratulations to NCLA's Mark Chenoweth and John Vecchione for being named among Washington DC's 500 Most Influential People of 2024 by the Washingtonian!
Their unwavering commitment to defending civil liberties is truly commendable and sets a powerful example.
In this episode, Mark and Jenin discuss the award as well as the Bradley Award recently bestowed upon NCLA client Jay Bhattacharya for his work during the pandemic.
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The NCLA has notified the U.S. Consumer Product Safety Commission (CPSC) of its intent to sue the agency over Commissioner Richard Trumka’s alleged violation of Dreamland Baby Co.’s constitutional and statutory rights. Dreamland, which manufactures infant and toddler products, claims Trumka made false and damaging public statements suggesting its wearable infant sleep sacks caused infant deaths. The NCLA’s letter demands that CPSC and Trumka preserve all related documents and communications and cease their illegal actions against Dreamland.
NCLA's Kara Rollins joins Mark, Vec, and Jenin to discuss the details.
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In a 7-2 decision, the US Supreme Court ruled in Consumer Financial Protection Bureau v. Community Financial Services Association of America that the Consumer Financial Protection Bureau's (CFPB) funding mechanism is constitutional.
The CFPB operates with a funding method outside direct Congressional control. The NCLA, along with The Buckeye Institute and the Manhattan Institute for Policy Research, filed an amicus curiae brief urging the Court to overturn the CFPB’s funding method as a violation of the Constitution’s Appropriations Clause.
NCLA's Mark and Vec have a lively discussion about this decision in this latest episode!
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The U.S. Court of Appeals for the Second Circuit upheld the dismissal of the In re Bystolic antitrust lawsuit! NCLA supported this outcome in its amicus brief, while the Federal Trade Commission (FTC) supported the plaintiffs despite not filing suit. NCLA argued that plaintiffs must show a large net payment, not just a large gross payment, to prove antitrust violations. The Second Circuit ruled that plaintiffs failed to state a valid claim. NCLA and the International Center for Law and Economics (ICLE) applaud this decision!
Mark and Vec discuss and celebrate the victory in this latest episode.
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NCLA has filed a brief urging the en banc U.S. Court of Appeals for the Fifth Circuit to overturn Nasdaq’s "Board Diversity Rules," which the SEC implemented without statutory authority. These rules require Nasdaq-listed companies to meet gender, race, and sexual orientation quotas for their boards or explain why, under threat of delisting. Additionally, the SEC will provide lists of candidates to companies unable to meet these quotas. A Fifth Circuit panel had upheld these rules, but the en banc court has agreed to rehear the case. The 1934 Securities and Exchange Act restricts the SEC to roles ensuring fair markets, investor protection, and efficient capital formation, which the NCLA argues the SEC has exceeded.
Mark, Vec, and Jenin are joined by NCLA's Peggy Little to discuss the recent oral argument in the case.
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The U.S. District Court for the Eastern District of Texas has denied nearly all of the government’s motion to dismiss NCLA’s lawsuit, The Daily Wire, The Federalist, Texas v. State Dept., which alleges massive violations of free speech and press rights. The Court also granted NCLA’s request for expedited discovery and rejected the government’s request to transfer venue to the U.S. District Court for the District of Columbia.
NCLA now looks forward to revealing the true depth of this egregious censorship regime via expedited discovery, and to stopping the State Department from abridging Americans’ civil liberties. Jenin Younes and NCLA's Peggy Little continue to discuss the case and the judge's order.
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The U.S. District Court for the Eastern District of Texas has denied nearly all of the government’s motion to dismiss NCLA’s lawsuit, The Daily Wire, The Federalist, Texas v. State Dept., which alleges massive violations of free speech and press rights. The Court also granted NCLA’s request for expedited discovery and rejected the government’s request to transfer venue to the U.S. District Court for the District of Columbia.
NCLA now looks forward to revealing the true depth of this egregious censorship regime via expedited discovery, and to stopping the State Department from abridging Americans’ civil liberties. Jenin Younes is joined by NCLA's Peggy Little to discuss the case and celebrate this recent victory!
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The U.S. Court of Appeals for the Eighth Circuit upheld the dismissal of Corner Post’s lawsuit challenging a Federal Reserve regulation, ruling that the six-year statute of limitations to challenge the rule had already expired. However, Corner Post did not exist until more than six years after the rule issued, and it filed suit less than four years after opening for business.
The New Civil Liberties Alliance has filed an amicus curiae brief in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, urging the U.S. Supreme Court to allow the lawsuit to go forward in such circumstances and protect judicial review.
In this episode, Mark and Vec discuss the case and a recent article by Michael Showalter in the Federalist Society Review.
See omnystudio.com/listener for privacy information.
A House Financial Services Committee recently held a hearing titled 'SEC Enforcement: Balancing Deterrence with Due Process.' The hearing focused on a number of issues that NCLA has been litigating, such as denial of due process rights through in-house adjudications, lack of jury trial rights, abusive processes in SEC investigations, use of disgorgement, the Gag rule, etc.
In this latest episode, Vec is joined by NCLA's Kara Rollins to discuss the hearing.
See omnystudio.com/listener for privacy information.
The House Subcommittee on the Weaponization of the Federal Government convened a hearing pertinent to two of NCLA's cases challenging the government's unconstitutional infringement on freedom of speech—Murthy v. Missouri and Changizi v. HHS. The hearing scrutinized the Biden White House's censorship policies implemented during the COVID-19 pandemic.
In this episode, Jenin, Vec, and Mark delve into the proceedings of the hearing.
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When a federal judge accedes to an agency's interpretation of the law, it essentially deprives the non-governmental party involved in the litigation of due process. Moreover, such deference undermines the judge's Article III mandate to uphold judicial independence. The notion of Chevron deference becomes particularly untenable when considering these significant drawbacks. NCLA is actively challenging Chevron in the case of Relentless v. DOC, staunchly advocating for judicial independence.
In this episode, Vec, Mark, and Jenin delve into a recent Law and Liberty article titled "Constitutional Government After Chevron?" which examines how the cessation of Chevron deference might impact our constitutional institutions holistically.
See omnystudio.com/listener for privacy information.
In their latest episode, Vec, Mark, and Jenin delve into the contentious firing of Martin Dickman, the inspector general of the U.S. Railroad Retirement Board (RRB), by the Biden Administration. Questions surrounding allegations of creating a "hostile work environment" have drawn scrutiny, prompting Senator Chuck Grassley to address the lack of clarity in the reasons provided to Congress for Dickman's dismissal.
See omnystudio.com/listener for privacy information.
NCLA has filed a Complaint in the U.S. District Court for the District of New Mexico, challenging the U.S. Department of Labor’s vague new independent contractor rule. Promulgated earlier this year, the rule distorts the standard for determining if someone hired by a company can be classified as an independent contractor, instead of an employee subject to the Fair Labor Standards Act’s (FLSA) wage and hour requirements. Representing the family-owned company Colt & Joe Trucking, NCLA asks the court to overturn this rule, which leaves small businesses like theirs completely unable to hire independent contractors without risking FLSA liability.
Vec, Mark, and Jenin discuss the case in this latest episode.
See omnystudio.com/listener for privacy information.
Vec recently attended the SCOTUS argument in the case of Trump v. United States. This pivotal case aims to define the scope of immunity for former presidents regarding potential criminal prosecution for actions allegedly tied to their official duties while in office.
In this episode, Mark and Vec discuss the highlights of the oral argument and case.
See omnystudio.com/listener for privacy information.
NCLA has filed a motion seeking a preliminary injunction from the U.S. District Court for Eastern District of Texas to stop one of the most egregious violations of free speech and free press rights in history. The U.S. State Department has funded the development, testing, and marketing of censorship technology used to suppress First Amendment-protected speech by disfavored media outlets including The Daily Wire and The Federalist based on their viewpoints. NCLA proudly represents these outlets in The Daily Wire, The Federalist, State of Texas v. State Dept. and now urges the Court to block this blatantly unlawful censorship regime before it can further abridge Americans’ civil liberties.
Mark and Vec are joined by NCLA's Casey Norman to discuss the updates in this case.
See omnystudio.com/listener for privacy information.
NCLA filed an amicus curiae brief in U.S. v. Pheasant, urging the U.S. Court of Appeals for the Ninth Circuit to affirm a decision barring the Bureau of Land Management (BLM) from wielding legislative power to criminalize activity on public lands. Gregory Pheasant was charged with three violations of BLM rules for allegedly failing to use a taillight on his dirt bike at night on federal land in Nevada. A federal district court dismissed the charges, ruling that Congress unconstitutionally delegated “virtually unfettered” legislative power to criminalize activities on BLM-managed lands. NCLA asks the Ninth Circuit to uphold this decision and reasoning.
In this episode, Mark and Vec are joined by NCLA's Kara Rollins to discuss the case.
See omnystudio.com/listener for privacy information.
NCLA has filed an amicus curiae brief in Cigar Association of America v. FDA, urging the U.S. Court of Appeals for the District of Columbia Circuit to reject the “remand without vacatur” legal doctrine. This dubious practice allows administrative agencies to continue enforcing rules the court has just declared unlawful. The doctrine creates a legal category unknown to the law: Unlawful but enforceable rules. Instead of sending them back, courts must set aside unlawful rules.
Mark and Vec discuss the case in this episode.
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Members of the NCLA team atteneded in The Federalist Society's Twelfth Annual Executive Branch Review Conference (EBRXII) this week. The conference showcased a diverse array of speakers and addressed an extensive range of topics, spanning from overarching government policies to nuanced discussions on environmental law, border security, the relevance of Humphrey's Executor, safeguarding religious freedom in non-discrimination laws, and the principles and challenges surrounding U.S. financial regulations.
Mark and Vec are joined by Zhonette Brown who gives her take on the conference and the topics discussed.
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The EEOC's Pregnant Workers Fairness Act (PWFA) requires a covered employer to provide a “reasonable accommodation” to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”
The PWFA went into effect on June 27, 2023 and on April 15, 2024 the EEOC issued its final regulation to carry out the law. The final regulation goes into effect on June 18, 2024.
In this episode, Mark, Vec, and Jenin discuss this regulation.
See omnystudio.com/listener for privacy information.
NCLA continues to fight on behalf of Honorable Judge Pauline Newman as she faces unjust attempts from her colleagues to remove her from a constitutionally appointed lifetime position as a Federal Cir. Judge. This case isn’t just about restoring her to the bench—it is about the very independence of the federal judiciary and the ability of each federal judge to fulfill the office constitutionally entrusted to her.
Mark and Vec are joined by NCLA Senior Litigation Counsel Geg Dolin who provides updates on Judge Pauline Newman’s case against the Judicial Council of the Federal Circuit.
See omnystudio.com/listener for privacy information.
NCLA launched a Complaint against the SEC challenging the agency’s unconstitutional “Consolidated Audit Trail.” The CAT is the largest government-mandated mass collection of personal financial data in American history. Without any statutory authority, SEC is forcing brokers, exchanges, clearing agencies and alternative trading systems to capture and send detailed information on every investor’s trades in U.S. markets to a centralized database, which SEC and private regulators can access forever.
Mark and Vec are joined by NCLA Senior Litigation Counsel Andrew Morris to discuss this unlawful, unprecedented seizure and mass surveillance scheme.
See omnystudio.com/listener for privacy information.
NCLA is proud to announce the Fourth Annual King George III Prize—a campaign to call attention to the most egregious violations of our basic civil liberties by people and institutions responsible for those abuses.
In this episode, NCLA's Clegg Ivey joins Mark to discuss the latest brackets in the contest.
See omnystudio.com/listener for privacy information.
In NCLA's SEC v. Spartan Securities Group, the SEC brought 14 counts against Appellants, alleging their participation in two schemes to aid and abet the creation of fake publicly traded companies and subsequent issuance of stock between December 2009 and August 2014.
After a 12-day trial in July 2021, the jury returned a verdict in favor of Appellants on 13 of the 14 counts charged. The sole remaining count in favor of SEC—that Appellants made materially misleading statements or omissions in connection with the purchase of the issuers’ securities—led the court to award various monetary and equitable remedies, including disgorgement.
In this episode, Vec is joined by NCLA's Kara Rollins to discuss the case and the SEC’s request for disgorgement.
See omnystudio.com/listener for privacy information.
The government is attempting to dismiss Honorable Judge Pauline Newman’s lawsuit in district court over unjust attempts from her colleagues to remove her from a constitutionally appointed lifetime position as a Federal Circuit Judge.
Vec and Jenin are joined by NCLA's Greg Dolin who provides updates on Judge Newman's case.
See omnystudio.com/listener for privacy information.
NCLA has long been challenging the Biden Administration's unlawful student loan forgiveness scam as it undermines Congress and costs Americans billions in taxes.
In this episode, Vec and Jenin are joined by NCLA's Sheng Li to discuss the recent updates in the President's plan.
See omnystudio.com/listener for privacy information.
NCLA is proud to announce the Fourth Annual King George III Prize—a campaign to call attention to the most egregious violations of our basic civil liberties by people and institutions responsible for those abuses.
In this episode, NCLA's Clegg Ivey joins Mark to discuss the latest brackets in the contest.
See omnystudio.com/listener for privacy information.
The New Civil Liberties Alliance has filed a petition with the Ninth Circuit to review the SEC’s denial of our long-standing petition to amend the agency’s “Gag Rule.” In place for over five decades, this pernicious rule forbids every American who settles a regulatory enforcement case with SEC from even truthfully criticizing their cases in public.
Representing several SEC enforcement targets silenced by the Gag Rule, NCLA’s Peggy Little talks with Vec about the petition and this egregious trampling of First Amendment rights.
See omnystudio.com/listener for privacy information.
In Høeg v. Newsom, NCLA represents several California physicians whose First Amendment rights were violated by Assembly Bill (AB) 2098—a law that subjected physicians to discipline for giving patients advice about Covid-related matters that didn’t comport with the “scientific consensus.” Many bad government actors have avoided facing legal consequences for unconstitutional actions by abusing the mootness doctrine.
In this episode, NCLA’s Jenin Younes discusses the recent oral argument in Høeg v. Newsom and the exploitation of the mootness doctrine.
See omnystudio.com/listener for privacy information.
In Reid v. James Madison University, NCLA represents Alyssa Reid, a former forensics coach at James Madison University whose case provides yet another example of how Title IX has been hijacked and weaponized to exact revenge for a bad breakup. NCLA’s complaint argues that the actions of James Madison University, assisted by the Dept. of Education, deprived Ms. Reid of her rights and entitlements as protected by the constitutions of both the United States and the Commonwealth of Virginia, as well as by Title IX itself.
In this episode, NCLA’s Greg Dolin joins Mark to discuss the case.
See omnystudio.com/listener for privacy information.
NCLA filed a Complaint urging the U.S. District Court for the Southern District of Texas to declare that the Public Company Accounting Oversight Board is a private entity unlawfully exerting government power. The unconstitutionally structured Board exercises sweeping legislative, executive, and pseudo-judicial power bestowed by the Sarbanes-Oxley Act of 2002, but it is staffed entirely by non-governmental private citizens who are subject to very little direction, oversight, or supervision from federal officials. This arrangement violates Article I, Sec. 1 of the U.S. Constitution.
Mark is joined by NCLA's Russ Ryan to discuss the case.
See omnystudio.com/listener for privacy information.
The Biden Administration’s illegal plan to unilaterally cancel student loan debt is getting pushback in the courts from NCLA. NCLA represents the Cato Institute, a nonprofit organization that promotes individual liberty, limited government, free markets, and peaceful international relations. The complaint argues the Biden Administration’s arbitrary one-time student loan debt cancellation scheme violates the Constitution’s Appropriations and Vesting clauses, infringing on Congress’ sole power of the purse. The program abuses the Department of Education’s discretionary power and must be set aside.
Mark is joined by NCLA's Russ Ryan to discuss the case and the recent oral argument.
See omnystudio.com/listener for privacy information.
NCLA has filed an opening brief in National Center for Public Policy Research v. SEC urging the en banc U.S. Court of Appeals for the Fifth Circuit to set aside Nasdaq’s unconstitutional “Board Diversity Rules,” which SEC promulgated without statutory authority. These Rules impose gender, race and sexual orientation quotas on corporate board membership for Nasdaq-listed companies. Further, the Rules compel companies that fail to meet their board seat quotas to explain why or face involuntary delisting from the stock exchange.
A Fifth Circuit panel had upheld the Board Diversity Rules, but the en banc court granted NCLA’s request to rehear the case. In this episode, Mark, Vec, and Jenin are joined by NCLA's Peggy Little to discuss the case.
See omnystudio.com/listener for privacy information.
NCLA has petitioned the U.S. Supreme Court for a writ of certiorari in Changizi v. HHS, a lawsuit combating the government’s unconstitutional assault on freedom of speech. NCLA’s petition asks the Court to resolve a circuit split between the Fifth and Sixth Circuits on what plaintiffs must show to satisfy Article III standing in censorship cases against the government.
Officials in the Department of Health and Human Services (HHS) have violated the First Amendment by directing social media companies to censor viewpoints that conflict with HHS’s Covid-19 messaging. The petition urges the Court to overturn the U.S. Court of Appeals for the Sixth Circuit ruling that NCLA clients Mark Changizi, Michael Senger, and Daniel Kotzin lacked standing to challenge the censorship regime that silenced them.
Mark and Vec discuss the case in this latest episode.
See omnystudio.com/listener for privacy information.
NCLA is proud to announce the Fourth Annual King George III Prize—a campaign to call attention to the most egregious violations of our basic civil liberties by people and institutions responsible for those abuses.
In keeping with the spirit of March Madness and King George, we are introducing two tournament brackets: one with 16 nominees comprising the state and federal agencies and officials who committed the worst abuses of civil liberties in 2023 and a second bracket devoted exclusively to 16 state and federal officials who dedicated their efforts to censorship and violating the First Amendment in 2023.
In this episode, NCLA's Clegg Ivey joins Mark to discuss the contest.
See omnystudio.com/listener for privacy information.
Administrative adjudication is an unconstitutional system! It evades almost all of the procedural rights guaranteed under the Constitution. It subjects Americans to biased adjudication without real judges or juries and denies them their right to due process.
NCLA's Mark Chenoweth provided full testimony before the House Judiciary Committee last week on reining in agency adjudication and discuss in this episode.
See omnystudio.com/listener for privacy information.
The Supreme Court heard oral argument in NCLA's Murthy v. Missouri, considering whether to uphold a historic preliminary injunction granted by the U.S. Court of Appeals for the Fifth Circuit. The injunction, temporarily stayed by the Court, would bar officials from the White House, CDC, FBI, Cybersecurity and Infrastructure Security Agency (CISA), and Surgeon General’s office from coercing or significantly encouraging social media platforms to censor constitutionally protected speech. The injuries to NCLA’s clients—Drs. Jayanta Bhattacharya, Aaron Kheriaty, and Martin Kulldorff, and Ms. Jill Hines—supplied standing for many of the arguments made in the courtroom, urging the Court to uphold the injunction in defense of Americans’ First Amendment rights.
In this episode, Mark and Vec discuss the oral argument and the case.
See omnystudio.com/listener for privacy information.
The Supreme Court heard oral argument in NCLA's Murthy v. Missouri, considering whether to uphold a historic preliminary injunction granted by the U.S. Court of Appeals for the Fifth Circuit. The injunction, temporarily stayed by the Court, would bar officials from the White House, CDC, FBI, Cybersecurity and Infrastructure Security Agency (CISA), and Surgeon General’s office from coercing or significantly encouraging social media platforms to censor constitutionally protected speech. The injuries to NCLA’s clients—Drs. Jayanta Bhattacharya, Aaron Kheriaty, and Martin Kulldorff, and Ms. Jill Hines—supplied standing for many of the arguments made in the courtroom, urging the Court to uphold the injunction in defense of Americans’ First Amendment rights.
In this episode, Mark and Vec discuss the oral argument and the case.
See omnystudio.com/listener for privacy information.
NCLA has filed a brief opposing summary judgment in its client Dr. Mukund Vengalattore’s lawsuit alleging that Cornell University’s biased and faulty sexual misconduct investigation discriminated against him in violation of Title IX and defamed him. Cornell’s scheme was driven in part by the university’s Title IX office, which succumbed to pressure from the Department of Education (DOE) to rig its investigatory and adjudicatory processes against men accused of sexual misconduct.
In this episode, Litigation Counsel Casey Norman joins Mark to discuss the case.
See omnystudio.com/listener for privacy information.
The New Civil Liberties Alliance is challenging the Massachusetts Department of Public Health (DPH) in federal court for coordinating with Google to automatically install spyware on the smartphones of more than one million Commonwealth residents, without their knowledge or consent, in a misguided effort to combat Covid-19.
Mark is joined by Litigation Counsel Sheng Li to discuss.
See omnystudio.com/listener for privacy information.
The Internal Revenue Service unlawfully seized financial records of New Civil Liberties Alliance client James Harper and thousands of others from a cryptocurrency exchange through abuse of a “John Doe” summons, without notifying account holders so they could contest the summons. IRS took Mr. Harper’s documents without any individualized suspicion to believe he had under-reported his income or failed to pay tax, and it denied him procedural due process to challenge the seizure.
NCLA has filed a reply brief in Harper v. Werfel, urging the U.S. Court of Appeals for the First Circuit to rule that these actions violated Mr. Harper’s statutory, Fourth, and Fifth Amendment rights. NCLA filed the opening brief on October 13, 2023.
Mark discusses the case and the recent oral argument with Litigation Counsel Sheng Li.
See omnystudio.com/listener for privacy information.
NCLA has petitioned SCOTUS to hear Norris v. Stanley regarding Michigan State University’s unlawful and unscientific Covid-19 vaccine mandate. MSU fired two of NCLA’s three clients, all of whom had naturally acquired immunity to Covid, for refusing the vaccine. By conditioning their public employment on receiving unnecessary medical treatment, MSU violated their constitutional right to refuse medical intervention and ignored their statutory right to informed consent.
Senior Litigation Counsel Gregory Dolin joins Mark and Vec in this episode to discuss the case.
See omnystudio.com/listener for privacy information.
NCLA settled with DOE and the Energy Information Administration to formally end an attempt to force cryptocurrency mining companies including members of the Texas Blockchain Council to hand over sensitive information about their operations through a mandatory Cryptocurrency Mining Facilities Survey. NCLA alleged that the Office of Management and Budget had given EIA emergency permission to collect this data despite EIA’s failure to demonstrate that short cutting the statutory process would prevent public harm, as federal law requires.
Vec and NCLA Litigation Counsel Kara Rollins discuss this shape shifter crypto case and celebrate NCLA’s victory in defense of privacy rights and the rule of law.
See omnystudio.com/listener for privacy information.
NCLA settled with DOE and the Energy Information Administration to formally end an attempt to force cryptocurrency mining companies including members of the Texas Blockchain Council to hand over sensitive information about their operations through a mandatory Cryptocurrency Mining Facilities Survey. NCLA alleged that the Office of Management and Budget had given EIA emergency permission to collect this data despite EIA’s failure to demonstrate that short cutting the statutory process would prevent public harm, as federal law requires.
Vec and NCLA Litigation Counsel Kara Rollins discuss this shape shifter crypto case and celebrate NCLA’s victory in defense of privacy rights and the rule of law.
See omnystudio.com/listener for privacy information.
NCLA has petitioned the U.S. Sixth Circuit Court of Appeals for a writ of mandamus to force the SEC to stop delaying its ruling on our client Eric S. Smith’s appeal of an unlawful Financial Industry Regulatory Authority disciplinary decision. FINRA banned Mr. Smith from the securities brokerage industry for life and heavily fined him based on faulty accusations and despite lacking any legal right to punish him in the first place. The SEC has refused to rule on Mr. Smith’s subsequent appeal for over three years, depriving him of his livelihood, severely damaging his reputation and business prospects, and violating his statutory and constitutional rights.
Vec and NCLA Senior Litigation Counsel Russ Ryan discuss Mr. Smith’s case.
See omnystudio.com/listener for privacy information.
NCLA filed a Complaint in the U.S. District Court for the Middle District of Tennessee challenging the Public Company Accounting Oversight Board’s secret, unaccountable, and inherently biased prosecutorial processes. PCAOB has investigated and brought a secret prosecution aiming to brand NCLA’s client a wrongdoer, strip away his livelihood and impose severe financial penalties against him—without a jury trial, due process of law, an impartial adjudicator, or any constitutional accountability. NCLA’s client, John Doe (a pseudonym used to protect his anonymity), asks the Court to stop these disciplinary proceedings and declare them unconstitutional.
Vec and Senior Litigation Counsel Russ Ryan discuss John Doe v. PCAOB.
See omnystudio.com/listener for privacy information.
NCLA has settled with DOE and EIA to formally end an attempt to force cryptocurrency mining companies to hand over sensitive information about their operations through a mandatory Cryptocurrency Mining Facilities Survey. NCLA alleged that OMB had given EIA emergency permission to collect this data despite EIA’s failure to demonstrate that short-cutting the statutory process would prevent public harm, as federal law requires.
Mark and Vec discuss Texas Blockchain Council v. Dept. of Energy and celebrate this victory in defense of privacy rights and the rule of law.
See omnystudio.com/listener for privacy information.
NCLA filed an amicus curiae brief at the Supreme Court in Starbucks Corp. v. McKinney, a case challenging a deferential legal standard that allows the National Labor Relations Board to enjoin a company’s conduct without showing that it likely broke the law. NLRB can initiate an administrative enforcement proceeding and then obtain a preliminary injunction in federal district court just by demonstrating that (1) its claims are not frivolous, and (2) those claims serve NLRB’s remedial purposes.
The Sixth Circuit upheld the injunction due to prior circuit precedent. NCLA’s brief asks the Supreme Court to reject this textually baseless test, reverse the Sixth Circuit’s ruling, and require NLRB to satisfy the same injunction standard as every other litigant.
Mark and Vec discuss Starbucks Corp. v. McKinney and NCLA’s corresponding amicus brief.
See omnystudio.com/listener for privacy information.
Last week, former Texas Solicitor General Jonathan Mitchell presented oral argument to the Supreme Court in NCLA's Garland v. Cargill case, demonstrating that ATF's unilateral bump-stock ban conflicts with the federal statute defining “machineguns.” NCLA’s client, Texas gun shop owner, and Army veteran Michael Cargill, appeared in the courtroom and NCLA anticipates a Supreme Court decision later this term that will prevent ATF from criminalizing innocent Americans.
Mark and Vec discuss Garland v. Cargill and what happened at oral argument.
See omnystudio.com/listener for privacy information.
Last week, former Texas Solicitor General Jonathan Mitchell presented oral argument to the Supreme Court in NCLA's Garland v. Cargill case, demonstrating that ATF's unilateral bump-stock ban conflicts with the federal statute defining “machineguns.” NCLA’s client, Texas gun shop owner, and Army veteran Michael Cargill, appeared in the courtroom and NCLA anticipates a Supreme Court decision later this term that will prevent ATF from criminalizing innocent Americans.
Mark and Vec discuss Garland v. Cargill and what happened at oral argument.
See omnystudio.com/listener for privacy information.
The Eighth Circuit upheld the dismissal of Corner Post’s lawsuit challenging a Federal Reserve regulation, ruling that the six-year statute of limitations to challenge the rule had already expired.
However, Corner Post did not exist until more than six years after the rule issued, and it filed suit less than four years after opening for business. NCLA filed an amicus curiae brief in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, urging SCOTUS to allow the lawsuit to go forward in such circumstances and protect judicial review.
NCLA Litigation Counsel Kara Rollins joins Mark and Vec to go over the oral argument at the Supreme Court last week in Corner Post, Inc. v. Board of Governors of the Federal Reserve System.
See omnystudio.com/listener for privacy information.
This week, NCLA will be presenting oral argument before SCOTUS in Garland v. Cargill, a case that challenges ATF’s unlawful expansion of the statutory definition of a “machinegun.”
Mark and Vec preview the upcoming oral argument in Garland v. Cargill before the highest court in the land.
See omnystudio.com/listener for privacy information.
NCLA filed an amicus curiae brief in American Securities Association v. Securities and Exchange Commission, urging the Eleventh Circuit to set aside an SEC order requiring financial industry broker-dealers to fund a “Consolidated Audit Trail” (CAT) that Congress never authorized. Unless the Court intervenes to stop it, these costs will be passed on to the investing American public as an unlegislated tax.
Mark is joined by NCLA Senior Litigation Counsel Andrew Morris to discuss NCLA’s amicus brief in American Securities Association v. Securities v. SEC.
See omnystudio.com/listener for privacy information.
The U.S. Court of Appeals for the Fifth Circuit has agreed to an en banc rehearing of NCLA’s National Center for Public Policy Research v. SEC lawsuit challenging “Board Diversity Rules” that SEC promulgated without statutory authority. These rules impose race, gender, and sexual orientation quotas on corporate board membership for companies listed on the Nasdaq stock exchange, along with compelling corporate speech to explain any quota missed.
Mark is joined by Senior Litigation Counsel Peggy Little to discuss National Center for Public Policy Research v. SEC and the upcoming argument in which NCLA will urge the Fifth Circuit to set these unlawful rules aside.
See omnystudio.com/listener for privacy information.
NCLA has filed a petition urging SCOTUS to hear Metal Conversion Techs. v. DOTand decide that courts can equitably toll statutory deadlines to forestall agencies from tricking their enforcement targets. Metal Conversion Technologies is a family-owned company that the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) tried to punish via an unconstitutionally appointed agency adjudicator. DOT then failed to disclose the official’s improper appointment, preventing the company from seeking judicial review of the civil penalty on that basis within the normal statutory deadline.
Mark and Vec discuss Metal Conversion Techs. v. DOT.
See omnystudio.com/listener for privacy information.
NCLA filed an amicus curiae brief asking the Fifth Circuit to rehear the case of Consumers’ Research v. CPSC en bancto decide whether CPSC’s structure is unconstitutional. CPSC Commissioners unquestionably wield executive power, yet the President cannot remove them at will.
Mark and Vec discuss why the Fifth Circuit should correct this glaring arrogation of the executive power in Consumers’ Research v. CPSC.
See omnystudio.com/listener for privacy information.
A Washington, D.C. federal court has dismissed a portion of the Honorable Judge Pauline Newman’s lawsuit over unjust attempts from her colleagues to remove her from a constitutionally appointed lifetime position as a Federal Circuit.
Mark and Vec provide updates on Newman v. Moore with Greg Dolin.
See omnystudio.com/listener for privacy information.
Forty-five Members of Congress, 16 states, state legislators, former government officials, journalists, attorneys, media personalities, academics, activist groups and research organizations have filed 27 amici curiae briefs supporting the New Civil Liberties Alliance’s position in Murthy v. Missouri against government-directed censorship.
Mark and Vec discuss Murthy v. Missouri and the wave of support from amici.
See omnystudio.com/listener for privacy information.
In United States Department of Agriculture Rural Development Rural Housing Service v. Kirtz, the Supreme Court considered whether private individuals can sue the federal government for violating the Fair Credit Reporting Act. Last week, the Supreme Court unanimously held that the federal government is subject to suit under the FCRA. This decision will now allow consumers to sue one of the nation’s largest credit reporters whenever it gives false information about them to credit reporting agencies.
Mark and Vec talk about Department of Agriculture Rural Development Rural Housing Service v. Kirtz and the Supreme Court’s decision.
See omnystudio.com/listener for privacy information.
The IRS unlawfully seized financial records of NCLA’s client James Harper and thousands of others from a cryptocurrency exchange through abuse of a “John Doe” summons, without notifying account holders so they could contest the summons. IRS took Mr. Harper’s documents without any individualized suspicion to believe he had under-reported his income or failed to pay tax, and it denied him procedural due process to challenge the seizure.
Mark highlights NCLA’s reply brief in Harper v. Werfel, which urges the Court to rule that these actions violated Mr. Harper’s statutory, Fourth, and Fifth Amendment rights.
See omnystudio.com/listener for privacy information.
The U.S. State Department has funded the development of censorship technology used to suppress First Amendment-protected speech by disfavored media outlets such as The Daily Wire and The Federalist based on their viewpoints. NCLA proudly represents these outlets in The Daily Wire, The Federalist, State of Texas v. State Dept. and hoping the Court will block this unlawful censorship regime before it can further abridge Americans’ civil liberties.
Mark discusses The Daily Wire, The Federalist, Texas v. State Dept. and the filing of NCLA’s recent motion for a preliminary injunction to stop this direct violation of free speech and free press rights.
See omnystudio.com/listener for privacy information.
NCLA has filed a brief for the respondents in the U.S. Supreme Court case of Murthy v. Missouri, urging the Justices to uphold a historic preliminary injunction that would bar officials from the White House, CDC, FBI, CISA, and Surgeon General’s office from coercing or significantly encouraging social media platforms to censor constitutionally protected speech.
NCLA eagerly anticipates presenting oral arguments to the Supreme Court on March 18, in defense of Americans’ First Amendment rights.
Vec discusses the latest developments in Murthy v. Missouri.
See omnystudio.com/listener for privacy information.
While Chevron deference is being challenged before the Supreme Court, the U.S. Court of Appeals for the Fifth Circuit is also revisiting Humphrey’s Executor v. United States—a 1935 SCOTUS decision that protects powerful federal agency commissioners from being fired by the president.
Mark and Vec discuss Edith Jones and Don Willett’s disagreement over Humphrey’s Executor.
See omnystudio.com/listener for privacy information.
NCLA is standing up for the Honorable Judge Pauline Newman as she faces unjust attempts from her colleagues to remove her from a constitutionally appointed lifetime position as a Federal Circuit Judge. This case isn’t just about restoring her to the bench—it is about the very independence of the federal judiciary and the ability of each federal judge to fulfill the office constitutionally entrusted to her.
NCLA Senior Litigation Counsel Greg Dolin discusses the recent oral argument in Newman v. Moore.
See omnystudio.com/listener for privacy information.
The IRS unlawfully seized financial records of NCLA’s client James Harper and thousands of others from a cryptocurrency exchange through abuse of a “John Doe” summons, without notifying account holders so they could contest the summons. NCLA has filed a reply brief in the case, urging the First Circuit to rule that these actions violated Mr. Harper’s statutory, Fourth, and Fifth Amendment rights.
Mark and Vec discuss the agency’s egregious violation of Americans’ rights and the reply brief in Harper v. Werfel.
See omnystudio.com/listener for privacy information.
The SEC denied NCLA’s long-standing petition to amend the agency’s “Gag Rule,” under which SEC forbids every American with whom it settles a regulatory enforcement case from even truthfully criticizing their cases in public. NCLA will challenge SEC’s denial of the petition in court, defending Americans against the Gag Rule’s constitutional and statutory defects.
NCLA Litigation Counsel Kara Rollins joins Mark and Vec to discuss SEC denying NCLA’s petition to amend its “Gag Rule”.
See omnystudio.com/listener for privacy information.
Invoking the contentious “qualified immunity” doctrine, state courts in Rhode Island prevented Rhode Island College officials from facing civil liability for violating a student’s First Amendment rights to free speech and expression. NCLA has petitioned the Supreme Court for a writ of certiorari in William Felkner v. John Nazarian, asking the Justices to reexamine the doctrine and abolish the ahistorical standard for “qualified immunity” that requires violations of the law to be “clearly established” via prior court precedents before officials can be held to account.
NCLA Senior Litigation Peggy Little joins Mark to discuss Felkner v. Nazarian and the reply brief filed in the case last week.
See omnystudio.com/listener for privacy information.
NCLA filed an amicus curiae brief in Elon Musk v. Securities and Exchange Commission urging the Supreme Court to strike down SEC’s “Gag Rule” censoring every American with whom it settles a regulatory enforcement case. The SEC is limiting Mr. Musk’s future speech and ability to speak publicly without preclearance or criticize the agency as a condition of settlement. This is a quintessential instance of prior restraint, which the Supreme Court has called “the most serious and the least tolerable infringement on First Amendment rights.”
NCLA Senior Litigation Counsel Peggy Little joins Mark to discuss Musk v. SEC.
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David Lesh was convicted in federal court and sentenced to 6 months’ probation, 160 hours of community service, and a $10,000 fine for simply posting a photo to his personal Instagram account.
Mark and NCLA Litigation Counsel Casey Norman discuss oral arguments in U.S. v. Lesh.
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This month, NCLA filed a brief for the Respondent in Garland v. Cargill, calling on the Supreme Court to determine that the Bureau of Alcohol, Tobacco, Firearms and Explosives’ unilateral bump-stock ban conflicts with the federal statute defining “machineguns.” ATF’s regulatory ban, which the U.S. Court of Appeals for the Fifth Circuit shot down last year, reversed the agency’s own long-standing recognition that bump-stock-equipped firearms are not illegal machine guns. NCLA is preparing to take this case to the highest court in the land and eagerly awaits presenting oral argument on February 28.
Mark discusses the response brief in the case in Garland v. Cargill.
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The Biden Administration’s Department of Education has begun illegally wiping out $39 billion of student loan debt owed by more than 800,000 people under the Income-Driven Repayment (IDR) program by crediting non-payments during periods of forbearance as monthly payments via a “One-Time Account Adjustment.” NCLA filed an opening brief for the Mackinac Center for Public Policy and the Cato Institute, calling on the U.S. Court of Appeals for the Sixth Circuit to stop this scheme that disregards federal law, the Constitution, and the United States Supreme Court.
Mark and Vec discuss student loan cancellation with NCLA Litigation Counsel Sheng Li.
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The U.S. Supreme Court has agreed to hear Starbucks’s case against the National Labor Relations Board (NLRB) for depriving the company of property without due process of law via an administrative enforcement proceeding. NLRB used a preliminary injunction it obtained in federal district court without ever establishing that Starbucks likely broke the law.
Mark and Vec interview NCLA Litigation Counsel Sheng Li on the filing of amicus brief in Starbucks Corp. v. McKinney, asking the Justices to grant cert, reverse the Sixth Circuit, and overturn NLRB’s special injunction standard.
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NCLA’s clients made their case in Relentless Inc. v. Dept. of Commerce in the courtroom last week and look forward to a Supreme Court decision by the end of June that will eliminate Chevron deference and vacate the NOAA rule once and for all.
Mark and Vec discuss the oral argument in Relentless Inc. v. Dept. of Commerce.
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Latham & Watkins partner Roman Martinez presented oral argument to the Supreme Court in NCLA’s Relentless Inc. v. Dept. of Commerce lawsuit challenging the Chevron precedent and an unconstitutional federal rule requiring fishing companies to pay for at-sea government monitoring of their herring catch. The case was argued before the U.S. Supreme Court in tandem with the case of Loper Bright Enterprises v. Gina Raimondo, which challenges the same at-sea monitor rule.
Seafreeze Fisheries Liaison and General Manager Meghan Lapp joined Mark and Vec to discuss the oral argument.
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The U.S. Supreme Court agreed to hear NCLA’s Relentless Inc. v. Dept. of Commerce lawsuit challenging the Chevron precedent and an unconstitutional federal rule requiring fishing companies to pay for at-sea government monitoring of their herring catch. The case will be argued before the U.S. Supreme Court in tandem with the case of Loper Bright Enterprises v. Gina Raimondo, which challenges the same at-sea monitor rule.
NCLA Senior Litigation Counsel Dan Kelly joins Mark and Vec to speculate about questions the Justices might ask in Relentless Inc. v. U.S. Dept. of Commerce.
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The EPA is picking and choosing which companies are allowed to produce and sell hydrofluorocarbons (HFCs)—refrigeration chemicals commonly used in refrigerators and air conditioners—by using power that Congress unconstitutionally handed the agency. NCLA is now urging to end this unconstitutional arrangement in Choice Refrigerants v. EPA.
Mark and Vec ask NCLA General Counsel and Senior Litigation Zhonette Brown about opposing the government’s motion to dismiss or stay proceedings in Choice Refrigerants v. EPA.
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David Lesh was convicted in federal court and sentenced to 6 months’ probation, 160 hours of community service, and a $10,000 fine for simply posting a photo to his personal Instagram account. NCLA is appealing his conviction.
Kara Rollins joins Mark and Vec to preview oral arguments in U.S. v. David Lesh.
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The U.S. Court of Appeals for the Fourth Circuit reopened former James Madison University faculty member Alyssa Reid’s Title IX and due process claims against the university last week.
Mark and Vec discuss Alyssa Reid v. James Madison University and this recent win with NCLA Senior Litigation Counsel Greg Dolin.
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In a recent Wall Street Journal opinion, Republican Ohio Attorney General David Yost discusses the Biden Administration’s calls for “whole-of-government” approaches to various issues, which rope in all of the agencies an administration controls. Approaches of this kind have fallen flat with judges, he says, pointing out how the Supreme Court has stopped administrative agencies from addressing major questions when Congress didn’t clearly give them the power to do so. According to Yost, court condemnation hasn’t deterred the Biden Administration’s whole of government approach, and Congress’ authority is essential to American governance of this kind.
Mark and Vec comment on Yost’s Wall Street Journal opinion about the "whole-of-government" approaches being pursued by the Biden Administration.
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NCLA filed a reply brief in Relentless Inc., et al. v. Dept. of Commerce, et al., a potential landmark case before the U.S. Supreme Court, calling for an end to the unconstitutional Chevron doctrine. NCLA addresses two core problems with Chevron deference that NCLA founder Philip Hamburger has emphasized for years. First, employing such deference abandons a judge’s Article III duty of judicial independence. Second, when a federal court defers to an agency’s legal interpretation, it denies due process of law to the entity opposing the government in that case. The logic of Chevron deference breaks apart under this devastating dual critique. Chevron also violates the Administrative Procedure Act (APA).
Mark and Vec highlight NCLA’s Supreme Court reply brief in Relentless Inc. v. Dept. of Commerce.
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The New Civil Liberties Alliance filed an opening brief in Choice Refrigerants v. EPA urging the U.S. Court of Appeals for the D.C. Circuit to halt EPA picking and choosing which companies may produce and sell hydrofluorocarbons (HFCs)—cooling compounds for air conditioners and refrigerators. EPA wields power that Congress unconstitutionally handed the agency, stifling business for NCLA’s client, Choice Refrigerants, a small American company that created and patented a popular HFC blend. The agency’s use of such unbounded legislative authority must be stopped.
Mark and Vec discuss the latest developments in Choice Refrigerants v. EPA with NCLA General Counsel and Senior Litigation Counsel Zhonette Brown.
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Presidents do not have the power to dispense with statutes. Today, the New Civil Liberties Alliance filed an amicus curiae brief emphasizing that point and urging the U.S. Supreme Court to grant certiorari in Murphy Company v. Biden. In this case, the U.S. Court of Appeals for the Ninth Circuit upheld a presidential proclamation that contradicts Congressionally-mandated land use in the Cascade-Siskiyou National Monument. The withdrawal of lawful land use in this monument designation is part of a legally disturbing trend: for the last 25 years, presidents of both parties have been exceeding their constitutional authority to designate monuments and inappropriately dispensing with statutes passed by Congress.
Mark, Vec and Zhonette talk about NCLA’s amicus brief in Murphy Company v. Biden.
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NCLA Director of Engagement Clegg Ivey wraps up the King George III Prize for the worst
abuser of civil liberties with Mark and Vec.
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In keeping with the spirit of the madness of March and King George, we started with a bracket of 32 nominees comprising the state and federal agencies and the bureaucrats who committed the worst abuses of civil liberties in 2022.
Vec and Mark interview NCLA Director of Engagement Clegg Ivey on the “Elitist Eight.”
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In keeping with the spirit of the madness of March and King George, we started with a bracket of 32 nominees comprising the state and federal agencies and the bureaucrats who committed the worst abuses of civil liberties in 2022.
Vec and Mark interview NCLA Director of Engagement Clegg Ivey on the “Elitist Eight.”
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NCLA announced the 2023 King George III Prize – an annual campaign calling out the most egregious violations of our fundamental civil liberties by people and institutions responsible for those abuses.
NCLA Director of Engagement Clegg Ivey joines the show to discuss the 2023 bracket.
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NCLA's Litigation Counsel Casey Norman gives updates about Høeg v. Newsom after the recent oral argument in the case.
California Gov. Gavin Newsom has signed a bill to repeal a law that would have subjected physicians to discipline for sharing information that departs from the “contemporary scientific consensus” on Covid-19 with their patients. However, the questions of nominal damages and constitutional claims are still unresolved.
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NCLA agreed to a stipulated dismissal of its gh Package v. Buttigieg lawsuit challenging the Department of Transportation’s unconstitutional and abusive administrative enforcement regime. NCLA’s federal-court lawsuit successfully pressured DOT to dismiss with prejudice its case against a family-run company, gh Package Product Testing and Consulting, Inc., which tests packages used to transport hazardous chemicals safely. The stipulated dismissal follows DOT’s dismissal of its administrative proceeding against gh Package with prejudice. NCLA celebrates this great victory for its client.
Mark and Jenin are joined by NCLA Litigation Counsel Kara Rollins to discuss the case.
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For over five decades, SEC has violated the First Amendment by gagging every American with whom it settles a regulatory enforcement case, forbidding them from uttering even truthful criticism of their cases in public. More than five years ago, NCLA petitioned SEC to abolish or amend its “Gag Rule,” but the agency has ignored that petition and continued its unconstitutional practice.
Mark and Jenin are joined by NCLA Litigation Counsel Kara Rollins to discuss the issue.
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NCLA's President and General Counsel Mark Chenoweth and NCLA's Litigation Counsel Jenin Younes discuss the Colorado Supreme Court's decision to declare Donald Trump ineligible for the White House: 14th Amendment, insurrection clause, and due process issues.
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NCLA President Mark Chenoweth testified Wednesday at the House Subcommittee on Oversight, Investigations, and Accountability's hearing entitled, “Censorship Laundering Part II: Preventing the Department of Homeland Security’s Silencing of Dissent”. He emphasized 4 legal principles that Congress must uphold to stop rampant censorship by DHS, the Cybersecurity and Infrastructure Security Agency, and multiple other agencies: (1) the government is not the arbiter of truth, (2) the First Amendment protects even false speech, (3) the government may not do indirectly what the First Amendment forbids it from doing directly, and (4) the First Amendment term "abridging" supplies the test to determine when the government has violated the right to free speech.
Vec and Jenin talk with Mark about his Congressional testimony on social media censorship.
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NCLA President Mark Chenoweth testified Wednesday at the House Subcommittee on Oversight, Investigations, and Accountability's hearing entitled, “Censorship Laundering Part II: Preventing the Department of Homeland Security’s Silencing of Dissent”. He emphasized 4 legal principles that Congress must uphold to stop rampant censorship by DHS, the Cybersecurity and Infrastructure Security Agency, and multiple other agencies: (1) the government is not the arbiter of truth, (2) the First Amendment protects even false speech, (3) the government may not do indirectly what the First Amendment forbids it from doing directly, and (4) the First Amendment term "abridging" supplies the test to determine when the government has violated the right to free speech.
Vec and Jenin talk with Mark about his Congressional testimony on social media censorship.
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NCLA Senior Litigation Counsel Russ Ryan wrote an illuminating Dec. 12 article in Bloomberg Tax calling on the Securities and Exchange Commission to investigate the Public Company Accounting Oversight Board’s (PCAOB) tax and spending practices. PCAOB uses taxes that it collects from companies to finance the majority of its activities on a budget that is not subject to much oversight by Congress.
Mark and Vec talk to Russ about PCAOB funding.
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The Judicial Council of the Federal Circuit has unlawfully suspended a longtime circuit judge, the Hon. Pauline Newman, from hearing new cases for at least a year, after ordering her indefinite suspension several months earlier without due process. NCLA proudly represents Judge Newman, challenging her unlawful pre-investigatory suspension and petitioning the Committee on Judicial Conduct & Disability to review the Judicial Council’s September suspension order.
Mark and Vec discuss the latest developments in Judge Newman’s case with NCLA Senior Litigation Counsel Andrew Morris.
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The U.S. government has asked a federal judge to dismiss an NCLA lawsuit on behalf of the Mackinac Center for Public Policy against the Dept. of Education’s unlawful 35-month suspension of monthly student loan payment obligations. NCLA has filed a response urging the U.S. District Court for the Eastern District of Michigan to continue the case, Mackinac Center for Public Policy v. U.S. Department of Education, and take action against the Department’s abuse of power.
Mark and Vec discuss illegal student loan debt cancellations with NCLA Litigation Counsel Sheng Li.
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The Judicial Council of the Federal Circuit has unlawfully suspended a longtime circuit judge, Hon. Pauline Newman, from hearing new cases for at least a year, after ordering her indefinite suspension several months earlier without due process. NCLA proudly represents Judge Newman, challenging her unlawful pre-investigatory suspension and petitioning the Committee on Judicial Conduct & Disability to review the Judicial Council’s September suspension order.
Mark and Vec discuss new developments in Judge Newman’s case with NCLA Senior Litigation Counsel Andrew Morris.
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Part 2. The U.S. State Department funds the development, testing, and marketing of censorship technology used to suppress First Amendment-protected speech by conservative media outlets including The Daily Wire and The Federalist based on viewpoints expressed in their content. NCLA has filed a lawsuit on behalf of these outlets in the U.S. District Court for the Eastern District of Texas to stop what appears to be one of the most egregious violations of the First Amendment’s guarantees of freedom of press and freedom of speech by the federal government in American history.
Mark and Vec interview NCLA Of Counsel Margot Cleveland about Daily Wire v. State Department.
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Part 1. The U.S. State Department funds the development, testing, and marketing of censorship technology used to suppress First Amendment-protected speech by conservative media outlets including The Daily Wire and The Federalist based on viewpoints expressed in their content. NCLA has filed a lawsuit on behalf of these outlets in the U.S. District Court for the Eastern District of Texas to stop what appears to be one of the most egregious violations of the First Amendment’s guarantees of freedom of press and freedom of speech by the federal government in American history.
Mark and Vec interview NCLA Of Counsel Margot Cleveland about Daily Wire v. State Department.
See omnystudio.com/listener for privacy information.
The Securities and Exchange Commission-approved “Board Diversity Rules” impose race, gender and sexual orientation-based quotas on the corporate boards of companies listed on the Nasdaq stock exchange. NCLA has petitioned the U.S. Court of Appeals for the Fifth Circuit for en banc rehearing of its National Center for Public Policy Research v. SEC lawsuit against these rules, including one in which SEC furnishes lists of quota-satisfying names to companies unable to meet such quotas on their own. These rules must be set aside, as SEC has no statutory authority to promulgate them.
Peggy talks about NCLA’s petition for review in NCPPR v. SEC.
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The U.S. Supreme Court has heard arguments in the case of SEC v. Jarkesy. NCLA proudly filed an amicus curiae brief in this case, with core constitutional rights at stake. SEC prosecuted George R. Jarkesy, Jr. in a years-long administrative proceeding that denied him his Seventh Amendment right to a jury trial. His administrative proceeding was adjudicated by an ALJ who was improperly insulated from removal. For both of these reasons, NCLA encouraged the court to rule against the SEC.
NCLA Senior Litigation Counsel Peggy Little joins the show to discuss the oral argument in Jarkesy.
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Every year the Federal Communications Commission collects billions of dollars from telecommunications customers—anyone with a telephone—to fund “universal service.” The program subsidizes high-cost areas and certain educational and healthcare providers. However, Congress wrote an evolving and open-ended statute, leaving FCC to set and then rewrite its own policies for the Universal Service Fund and to fund the program without limit through fees that escape Congressional oversight. NCLA has filed an amicus curiae brief urging the U.S. Supreme Court to hear the case of Consumers’ Research v. FCC, overturn this unconstitutional arrangement, and correct the enfeebled “nondelegation” doctrine that has enabled it.
Mark breaks down NCLA’s amicus brief in Consumers’ Research v. FCC with NCLA Staff Attorney Kaitlyn Schiraldi.
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Mark and Vec discuss the recent amicus briefs filed in support of NCLA’s arguments in Relentless v. Department of Commerce.
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The U.S. Supreme Court has announced it will hear the landmark NCLA case of Relentless Inc., et al. v. Department of Commerce, et al. challenging the Chevron doctrine and an unconstitutional NOAA surveillance rule.
Jenin interviews Vec about Relentless, which will be argued before the U.S. Supreme Court during the January 2024 argument session in tandem with the case of Loper Bright Enterprises, et al. v. Gina Raimondo, which challenges the same rule.
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California Gov. Gavin Newsom has signed a bill to repeal a law that would have subjected physicians to discipline for sharing information that departs from the “contemporary scientific consensus” on Covid-19 with their patients. NCLA celebrates this great victory for its brave clients, who stood up to this outrageous attack on the First Amendment: Drs. Tracy Høeg, Ram Duriseti, Aaron Kheriaty, Pete Mazolewski and Azadeh Khatibi, in Høeg, et al. v. Newsom, et al., a lawsuit challenging the vague and censorious statute.
NCLA Litigation Counsel Jenin Younes discusses NCLA’s victory in Høeg v. Newsomand the repeal of AB 2098 in California.
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The full Fifth Circuit bench has ruled that a bump stock does not fall within the definition of “machinegun” as set forth in federal law. NCLA represents gun shop owner, Army veteran, and firearms instructor Michael Cargill in Michael Cargill v. Merrick B. Garland, et al.
NCLA argued that: (1) the Final Rule conflicts with the statutory definition of a machinegun and thus exceeds ATF’s authority; (2) ATF’s construction is not entitled to Chevron deference; (3) to the extent that the courts determine that the definition of machinegun is ambiguous with respect to bump stocks, they should apply the rule of lenity to determine that bump stocks are not machineguns; and (4) if the statute were interpreted as authorizing ATF’s declaration that bump stocks are prohibited machineguns, then the statute would be an unconstitutional delegation of Congress’s legislative powers.
The Fifth Circuit agreed with NCLA on every one of these points.
Mark and Vec discuss NCLA’s Fifth Circuit win.
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NCLA Litigation Counsel Casey Norman and Kara Rollins join Vec to wrap up proceedings at the Federalist Society National Lawyers Convention.
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NCLA Litigation Counsels Casey Norman and Kara Rollins join Vec to wrap up proceedings at the Federalist Society National Lawyers Convention.
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Vec and Jenin discuss the Supreme Court’s taking of NRA v. Vullo.
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The U.S. Court of Appeals for the Eighth Circuit upheld the dismissal of Corner Post, Inc.’s lawsuit challenging a Federal Reserve regulation, ruling that the company had not filed suit before the six-year statute of limitations to challenge the rule expired. However, Corner Post did not exist until more than six years after the rule was implemented, and filed suit less than four years after opening for business. The New Civil Liberties Alliance is filing amicus curiae brief in Corner Post, Inc. v. Board of Governors of the Federal Reserve System urging the U.S. Supreme Court to allow the company’s lawsuit to go forward and protect the right to proper judicial review.
John, Jenin and NCLA Litigation Counsel Kara Rollins discuss NCLA’s amicus brief in this statute of limitations case before the U.S. Supreme Court.
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California bars private religious schools and parents of their students from accessing federal and state-level special education funds and programs. NCLA has filed an amicus curiae brief in Loffman v. California Department of Education, urging the U.S. Court of Appeals for the Ninth Circuit to block this policy, which violates faithful Californians’ First Amendment rights.
Vec and Jenin discuss NCLA’s recent amicus in the Ninth Circuit.
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Vec and Jenin discuss mootness in Høeg v. Newsom, NCLA’s lawsuit challenging California’s efforts to punish doctors for giving their opinions on Covid-19.
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NCLA has filed a petition in Changizi, et al. v. HHS, et al. asking an en banc U.S. Court of Appeals for the Sixth Circuit, or the three-judge panel, to rehear the case and halt the government’s unconstitutional assault on free speech. Biden Administration officials, including some within the Department of Health and Human Services, have violated the First Amendment by directing social media companies to censor viewpoints that conflict with the government’s Covid-19 messaging.
Vec and Jenin discuss NCLA’s request for rehearing in Changizi.
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Mark, Vec, and Jenin discuss Robert F. Kennedy Jr.’s attempt to intervene in Murthy v. Missouri, NCLA’s Supreme Court case challenging government-induced censorship online.
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NCLA has filed an amicus brief in Allstates Refractory Contractors LLC v. Su, et al., a case challenging the constitutionality of the Occupational Safety and Health (OSH) Act of 1970.
Jenin interviews NCLA Litigation Counsel Sheng Li on NCLA’s recent amicus brief regarding nondelegation in Allstates Refractory Contractors LLC v. Su.
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Jenin and Vec interview NCLA Senior Litigation Counsel Andrew Morris on updates in Judge Pauline Newman’s case against the Judicial Council of the Federal Circuit.
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The U.S. Supreme Court has agreed to hear arguments over the Fifth Circuit’s grant of a preliminary injunction in Missouri v. Biden, a case brought on behalf of NCLA clients Drs. Jayanta Bhattacharya, Martin Kulldorff, and Aaron Kheriaty, and Ms. Jill Hines, alongside the Attorneys General of Louisiana and Missouri. The injunction would bar officials from the White House, CDC, FBI, Cybersecurity and Infrastructure Security Agency, and Surgeon General’s office from coercing or significantly encouraging social media platforms to censor constitutionally protected speech.
Jenin and Vec discuss the recent cert grand in Missouri v. Biden.
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The U.S. Supreme Court has agreed to hear arguments over the Fifth Circuit’s grant of a preliminary injunction in Missouri v. Biden, a case brought on behalf of NCLA clients Drs. Jayanta Bhattacharya, Martin Kulldorff, and Aaron Kheriaty, and Ms. Jill Hines, alongside the Attorneys General of Louisiana and Missouri. The injunction would bar officials from the White House, CDC, FBI, Cybersecurity and Infrastructure Security Agency, and Surgeon General’s office from coercing or significantly encouraging social media platforms to censor constitutionally protected speech.
Jenin and Vec discuss the recent cert grand in Missouri v. Biden.
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The U.S. Supreme Court has announced it will hear the landmark NCLA case of Relentless Inc., et al. v. Department of Commerce, et al. challenging the Chevron doctrine and an unconstitutional NOAA surveillance rule.
Jenin interviews Vec about Relentless, which will be argued before the U.S. Supreme Court during the January 2024 argument session in tandem with the case of Loper Bright Enterprises, et al. v. Gina Raimondo, which challenges the same rule.
See omnystudio.com/listener for privacy information.
The U.S. Supreme Court has announced it will hear the landmark NCLA case of Relentless Inc., et al. v. Department of Commerce, et al. challenging the Chevron doctrine and an unconstitutional NOAA surveillance rule.
Jenin interviews Vec about Relentless, which will be argued before the U.S. Supreme Court during the January 2024 argument session in tandem with the case of Loper Bright Enterprises, et al. v. Gina Raimondo, which challenges the same rule.
See omnystudio.com/listener for privacy information.
In National Center for Public Policy Research v. SEC, NCLA is challenging unauthorized SEC Rules concerning the race, gender, and sexual preference of members of corporate boards of directors for Nasdaq-listed companies.
Mark, Vec and NCLA Senior Litigation Counsel Peggy Little discuss a Fifth U.S. Circuit Court of Appeals panel’s denial of NCLA’s petition for review in National Center for Public Policy Research v. SEC. NCLA plans to petition for a Fifth Circuit en banc review.
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NCLA Senior Litigation Counsel Peggy Little joins Mark and Vec to discuss NCLA’s brief in the U.S Supreme Court for, SEC v. Jarkesy, a pivotal case challenging SEC's unconstitutional in-house administrative adjudication regime.
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Mark and Vec engage in unwarranted speculation about Relentless, Inc. v. Department of Commerce, NCLA’s lawsuit challenging NOAA’s unlawful at-sea monitor mandate.
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Hon. Pauline Newman Passes Medical Evaluation with Flying Colors, Forensic Psychiatrist Says
NCLA has released a forensic psychiatrist’s report detailing the clinical evaluation of the Hon. Pauline Newman, whose fellow judges are unlawfully attempting to oust her from a
constitutionally appointed lifetime position as a Federal Circuit Court of Appeals judge. The
results of the evaluation clearly demonstrate Judge Newman’s fitness to remain in active judicial service. A new video released by NCLA exposes the unjust treatment of Judge Newman and showcases her vibrant mind, vigor, and dignity for all to see.
Vec, Mark and Senior Litigation Counsel Andrew Morris discuss the new video and Judge
Newman’s examinations.
Fifth Circuit Rules Against FDA in Quarrel over Ivermectin
The U.S. Fifth Circuit court of appeals has ruled that three doctors who prescribed ivermectin for Covid-19 patients have valid claims that the Food and Drug Administration (FDA) overstepped its authority with a campaign warning people not to take the drug.
John and Mark discuss the Fifth Circuit’s FDA ruling on the practice of medicine in Apter v.HHS.
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Amicus Brief Asks Appeals Court to Topple FINRA’s Illegal ‘Private’ Enforcement
Regime
The Financial Industry Regulatory Authority (FINRA) investigates, prosecutes, and punishes hundreds of securities firms and brokers every year for alleged violations of federal securities laws and rules, despite operating outside the government and without answering to the President. NCLA has filed an amicus curiae brief in Alpine Securities v. FINRA, asking the U.S. Court of Appeals for the District of Columbia Circuit to end FINRA’s blatantly unconstitutional use ofexecutive power.
Vec and NCLA Senior Litigation Counsel Russ Ryan discuss NCLA’s amicus brief in Alpine
Securities v. FINRA.
NCLA Files Amicus Brief in NLRB Lawsuit Alleging Tesla CEO’s Tweet Was Unfair
Labor Practice
NCLA has filed an amicus brief in support of Tesla, Inc.’s lawsuit challenging NLRB’s March
2021 ruling that the company violated the National Labor Relations Act (NLRA) and would be required to “direct [CEO Elon] Musk to delete” a tweet from his personal Twitter account that the Board deemed “unlawful”.
Mark and NCLA Litigation Counsel Sheng Li break down NCLA’s new amicus brief in Tesla,
Inc. v. NLRB.
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NCLA Asks Federal Court to Halt Illegitimate U.S. Dep’t of Transportation
Administrative Proceeding
NCLA has asked the U.S. District Court for the Southern District of Ohio in gh Package Product Testing and Consulting, Inc. v. Buttigieg to preliminarily enjoin an abusive Department of Transportation enforcement effort against a family-run company. DOT’s Pipeline and Hazardous Materials Safety Administration launched an administrative enforcement proceeding last November against NCLA’s client, gh Package Product Testing and Consulting, Inc., which tests packages used to safely transport hazardous materials. PHMSA claims the company submitted test reports with minor inaccuracies that violate DOT regulations.
Mark interviews NCLA Litigation Counsel Sheng Li about gh Package Product Testing and Consulting, Inc. v. Buttigieg.
NCLA Clients Ask Sixth Circuit to Repudiate Unlawful Covid-19 Vaccine Mandate
NCLA has filed a petition for an en banc review of a U.S. Sixth Circuit Court of Appeals panel’s decision that erroneously upheld Michigan State University’s unlawful Covid-19 vaccine mandate. MSU fired NCLA clients Kraig Ehm and D’Ann Rohrer from their university jobs for declining to take a Covid-19 vaccine because they had already acquired a more robust form of immunity protection as a result of prior Covid infection. NCLA has long maintained that the vaccine mandate violated its clients’ constitutional right to bodily autonomy, unlawfully conditioned their employment on receiving unnecessary medical treatment, and ignored their statutory right to informed consent.
Mark interviews NCLA Litigation Counsel Jenin Younes about NCLA’s petition for an en banc Sixth Circuit hearing in Norris v. Stanley.
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NCLA Condemns Government Efforts to Censor Covid Vaccine Injury Support Groups
NCLA opposes the government's motion to stay NCLA’s lawsuit in Brianne Dressen, et al. v. Rob Flaherty, et al. pending appeal of the preliminary injunction in NCLA's Missouri v. Biden case against social media censorship. In Dressen v. Flaherty, NCLA urges the U.S. District Court for the Southern District of Texas to stop the federal government’s unlawful efforts to work in concert with social media companies to monitor and censor online support groups for people injured by Covid-19 vaccines.
Mark and Vec discuss Dressen v. Flaherty with NCLA Litigation Counsel Casey Norman.
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The Qualified Immunity Debate
The judicial doctrine of qualified immunity protects government officials from facing civil
lawsuits accusing them of violating a plaintiff’s rights, if those rights are not “clearly
established” by the Constitution or statute. Mark and Vec discuss a new wrinkle in the qualified immunity debate.
New ABA President Backs Free Speech at Law Schools
The American Bar Association is considering making free speech protection a factor in law
school accreditation. Mark and Vec discuss new ABA President Mary Smith’s support for free speech at law schools.
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Sixth Circuit Panel Wrongly Decides OSHA Doesn’t Violate Nondelegation Doctrine
A panel of the U.S. Court of Appeals for the Sixth Circuit ruled Wednesday in Allstates
Refractory Contractors LLC v. Walsh, et al. that the Occupational Safety and Health
Administration’s power to set permanent workplace-safety “safety standards” did not violate the nondelegation doctrine. NCLA had filed an amicus curiae brief in the case, arguing that
the Occupational Safety and Health (OSH) Act of 1970 unlawfully transfers lawmaking power away from Congress by authorizing the Secretary of Labor to promulgate, modify, or revoke any occupational safety standard he deems “reasonably necessary or appropriate.”
Vec interviews NCLA Litigation Counsel Sheng Li about the Sixth Circuit decision in Allstates Refractory Contractors LLC v. Walsh.
NCLA Decries Govt Effort to Moot Suit Against Biden’s Illegal Federal Contractor
Vaccine Mandate NCLA has filed a brief opposing the government’s motion to dismiss NCLA’s Vanderstelt v. Biden lawsuit against the Biden Administration’s unconstitutional Covid-19 vaccine mandate for government contractors. President Biden withdrew the mandate in May, but still claims the authority to reimpose it at his whim. NCLA asks the U.S. District Court for the Western District of Michigan not to dismiss this suit against a major abuse of executive power that could resume at any moment, especially as Covid-19 restrictions re-emerge at companies and institutions across the country. Vec interviews NCLA Litigation Counsel Sheng Li on the response to the government’s motion to dismiss Vanderstelt.
See omnystudio.com/listener for privacy information.
NCLA Presents Oral Argument Against Government-Directed Social Media Censorship
The U.S. Court of Appeals for the Fifth Circuit has heard oral arguments in NCLA’s landmark Missouri v. Biden lawsuit against government-directed social media censorship. The government is appealing a historic order that would bar many federal agencies and officials from pressuring or coordinating with social media companies to censor First Amendment-protected speech.
Mark and Vec discuss the recent Fifth Circuit hearing in Missouri v. Biden.
NCLA Asks 5th Cir. to Approve Pathway to Challenge Unlawful SEC-Imposed Lifetime Speech Ban
NCLA has filed brief urging the U.S. Fifth Circuit Court of Appeals to restore Christopher
Novinger’s First Amendment rights. For decades, SEC has silenced people with lifetime speech bans enforced through threat of reopened prosecutions. Mr. Novinger’s Gag Order permanently forbids him from contesting allegations in SEC’s complaint, however inaccurate, and regardless of the truth of the forbidden speech, on pain of reopened and renewed prosecution.
NCLA Senior Litigation Counsel Peggy Little breaks down NCLA’s recent appeal in SEC v. Novinger.
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DC Circuit Hands Down Major Free Speech Victory
The U.S. Court of Appeals for the D.C. Circuit has handed down a major victory for free speech against the District of Columbia. In Frederick Douglass Foundation v. District of Columbia, Judge Neomi Rao has reversed District Court Judge James E. Boasberg’s dismissal of a challenge by pro-life protesters who alleged that they were treated differently from Black Lives Matter protesters. In the appeals court’s opinion on this selective enforcement of city ordinances, Judge Rao cited a 1976 U.S. Supreme Court opinion saying, “To permit one side … to have a monopoly in expressing its views … is the antithesis of constitutional guarantees.”
Mark and Vec discuss Judge Rao’s recent decision in Frederick Douglass Foundation v. District of Columbia.
Congress Cuts Funding School Archery Programs
Mark and Vec discuss the Biden Administration’s recent decision to begin blocking federal funding earmarked under the Elementary and Secondary Education Act of 1965 for schools with hunting and archery programs.
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NCLA Suit for Cato and Mackinac Center Contests Biden’s New Student Loan Debt Canceling Scheme
NCLA has filed a Complaint on behalf of the Cato Institute and the Mackinac Center for Public Policy in the U.S. District Court for the Eastern District of Michigan to stop President Biden’s utter disregard for federal law and the Constitution. Moving on an accelerated schedule to deter court review, the Department of Education announced its unlawful new scheme before the ink was dry on the Supreme Court opinion striking down its old $430 billion student loan debt cancellation plan.
NCLA Senior Litigation Counsel Russ Ryan and Litigation Counsel Sheng Li discuss NCLA's new student loan lawsuit.
Aftermath of Harvard & UNC Admissions Case at SCOTUS
Center for Equal Opportunity Chairman Linda Chavez speaks about the aftermath of the Harvard & UNC admissions case at the U.S. Supreme Court.
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NCLA Appeals EPA’s Lawless Stranglehold on Refrigeration Companies
NCLA has petitioned the U.S. District Court for the District of Columbia to grant an en banc hearing in a small company's case challenging EPA's unconstitional power over who can produce specific refrigeration chemicals. Congress never had the right to delegate such expansive power to EPA in the first place, and the agency has used it the detriment of NCLA's client, benefiting a Chinese-owned company that infringed on their patent.
NCLA Senior Litigation Counsel Zhonette Brown discusses NCLA's recent en banc petition in the DC Circuit.
NCLA Calls on Fifth Circuit to End FCC’s Unlawful Control over Universal Service Fund
The Federal Communications Commission administers the Universal Service Fund, which provides telecommunications services to rural and impoverished areas of the United States as well as to schools, libraries, and healthcare providers. However, in the Telecommunications Act of 1996, Congress wrote an “evolving” and open-ended statute, leaving FCC to set its own policies and extract money from Americans to fund the USF. NCLA has filed an amicus curiae brief in Consumers’ Research v. FCC, urging an en banc U.S. Court of Appeals for the Fifth Circuit to overturn this illegitimate arrangement, whereby Congress surrendered its exclusive constitutional power to tax and spend.
Zhonette breaks down NCLA's amicus brief in Consumers’ Research v. FCC.
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The Facebook Files with Jenin Younes
Jenin highlights the Facebook Files confirming the federal government’s role in censorship, released by the House Judiciary Select Subcommittee on the Weaponization of the Federal Government and its chair, Rep. Jim Jordan.
YouTube Censors NCLA for Video Exposing Censorship by the Government on Social Media
YouTube recently put a strike on NCLA's channel for posting the video of its monthly Lunch and Law panel, where experts discussed the latest developments in our Missouri v. Biden case against social media censorship and suppression. The dynamic discussion featured NCLA attorneys John Vecchione and Zhonette Brown alongside former Missouri Solicitor General John Sauer, who now represents Louisiana in the case. Without warning, YouTube removed the video for over 48 hours and placed a strike on NCLA's channel, falsely claiming the video had violated YouTube's "medical misinformation" guidelines. YouTube has rescinded the strike and restored the video. NCLA has also posted the video on Rumble, where it has garnered over 4,600 views thus far.
Mark and Jenin discuss YouTube’s recent takedown of NCLA’s Lunch and Law video.
See omnystudio.com/listener for privacy information.
NCLA Asks SCOTUS to Hear Securities Law Appeal with Major 1st Amendment
Implications
NCLA has filed a petition for a writ of certiorari in Lemelson, et al. v. SEC, asking the U.S. Supreme Court to hear a case that poses an important First Amendment issue. May the SEC punish commentary about publicly traded corporations that contains a few purported misstatements or omissions when a jury has cleared the accused of all fraud and deception charges? Surprisingly perhaps, the Supreme Court has never answered this question. So, for now, the SEC punishes such speech freely.
Mark describes NCLA’s U.S. Supreme Court petition for a writ of certiorari in Lemelson v. SEC.
9th Circuit Hears Arguments in McDonald v. Lawson
NCLA Litigation Counsel Jenin Younes discusses the recent oral arguments before the U.S.
Court of Appeals for the Ninth Circuit in McDonald v. Lawson, an NCLA amicus case.
See omnystudio.com/listener for privacy information.
In NCLA Amicus Win, Fifth Circuit Blocks CFTC’s Abusive Policy Reversal Against PredictIt Market
The U.S. Court of Appeals for the Fifth Circuit has ruled that the Commodity Futures Trading Commission’s threatened crackdown on the PredictIt Market without clear explanation was “likely arbitrary and capricious.” The Court ordered the U.S. District Court for the Western District of Texas to grant a preliminary injunction against CFTC’s action in the case of Clarke v. CFTC.
Mark interviews NCLA Senior Litigation Counsel Russ Ryan about NCLA’s Fifth Circuit amicus victory in Clarke v. CFTC.
The ‘MAGA’ Supreme Court Rulings
Mark and Vec criticize Harvard Law Professor Mark Tushnet’s recent letter telling President Biden to defy ‘MAGA’ Supreme Court rulings.
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Gov’t Tries to Scrap Challenge to IG Committee’s Structure and Illegal Interference with IG Operations
Vec explains the government’s recent motion to dismiss NCLA’s Inspector General case in Fredericks v. CIGIE.
NCLA Amicus Brief Challenges SCOTUS to Deep-Six Chevron
NCLA has filed an amicus curiae brief calling on the U.S. Supreme Court to overturn its destructive Chevron precedent in Loper Bright Enterprises, et al. v. Gina Raimondo, et al. The brief also asks the Court to set aside a rule promulgated by the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service.
Mark and Vec detail NCLA’s Supreme court amicus brief arguments against Chevron deference in Loper Bright.
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1 & 2
Fishermen Ask SCOTUS to Scrap Chevron Deference
A group of herring fishermen have filed their opening brief with the U.S. Supreme Court in the
case of Loper Bright Enterprises, et al. v. Gina Raimondo, et al. that asks the Court to overturn
Chevron deference.
Mark and Vec discuss the main party brief filed in Loper Bright.
See omnystudio.com/listener for privacy information.
Fishermen Ask SCOTUS to Scrap Chevron Deference
A group of herring fishermen have filed their opening brief with the U.S. Supreme Court in the case of Loper Bright Enterprises, et al. v. Gina Raimondo, et al. that asks the Court to overturn Chevron deference.
Mark and Vec discuss the main party brief filed in Loper Bright.
NCLA Clients Oppose Motion to Consolidate Missouri v. Biden and RFK Jr. Censorship Cases
The Plaintiffs in Kennedy v. Biden filed a motion to consolidate their lawsuit with NCLA’s
Missouri v. Biden suit against federal officials’ social media censorship and suppression
campaign. NCLA has filed an opposition to that motion.
See omnystudio.com/listener for privacy information.
NCLA Amicus Brief Urges Supreme Court to Strike Down CFPB’s Unconstitutional
Funding Method
The Consumer Financial Protection Bureau operates with an illegitimate funding method, outside of direct Congressional control. NCLA has filed an amicus curiae brief joined by The Buckeye Institute and the Manhattan Institute for Policy Research in the case of CFPB, et al., v. Community Financial Services Association of America, Limited, et al., urging the Court to overturn CFPB’s funding method as a violation of the Constitution’s Appropriations Clause.
Mark and NCLA Senior Litigation Counsel Rich Samp discuss NCLA’s amicus brief in CFPB v. CFSA.
Fourth Amendment Issues in Johnson v. Smith
Mark and Vec discuss Fourth Amendment issues in the Kansas dog breeding case, Johnson v. Smith. The plaintiffs, owners of a dog kennel in the state, are challenging licensing-related requirements in the Kansas Pet Animal Act that they argue violate the Fourth Amendment and infringe on the right to travel.
See omnystudio.com/listener for privacy information.
Latest Developments in Challenge to Gov’t Censorship
Vec discusses new developments in Missouri v. Biden, NCLA’s lawsuit challenging
government-induced censorship on social media.
The Federal Trade Commission’s Court Losses in FTC v. PPO
Vec explains the Federal Trade Commission’s losses in court in FTC v. PPO and FTC
Activision.
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NCLA Notches Supreme Court Amicus Win Against Biden’s Student Loan Debt Handout
The U.S. Supreme Court recently handed down a decision blocking the Biden Administration’s plan to cancel nearly a half-trillion dollars in outstanding student loans owed to the U.S. Treasury. As NCLA urged in an amicus curiae brief it filed in the case of Biden v. Nebraska, the Court ruled that Executive Branch administrators lack any legitimate power to make such sweeping changes to the law absent authorization from our elected representatives in Congress.
NCLA Litigation Counsel Sheng Li breaks down the student loan debt case, Biden v. Nebraska.
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Federal Judge Rules Biden Administration Cannot Censor Americans on Social Media
Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana has
granted a preliminary injunction prohibiting several federal agencies and specific White House officials from pressuring or coordinating with social media companies to suppress
constitutionally-protected speech – a major victory for NCLA’s clients Drs. Jayanta
Bhattacharya, Martin Kulldorff and Aaron Kheriaty and Jill Hines in the case of Missouri, et al., v. Biden, et al.
Vec is joined by NCLA Senior Litigation Counsel Zhonette Brown to discuss the preliminary
injunction order in Missouri v. Biden.
See omnystudio.com/listener for privacy information.
NCLA Asks Supreme Court to Rein in SEC Practice of Seeking Penalties in Excess of Statutory Caps
SEC penalties have exploded in size in recent years, in large part because the agency ignores statutory penalty caps Congress set in 1990. SEC civil penalties have become wildly inconsistent and unpredictable from case to case, depriving regulated parties of any semblance of fair notice about the potential consequences of their behavior. NCLA has filed a petition for a writ of certiorari with the U.S. Supreme Court on behalf of its client Richard Gounaud in Jocelyn M. Murphy, Michael S. Murphy, and Richard C. Gounaud v. SEC. NCLA asks the Justices to stop SEC from counting the number of violations in arbitrary ways when seeking penalties, to clarify who must register with SEC as a “broker,” and to uphold jury trial rights when the government seeks to impose punitive sanctions.
Vec and NCLA Senior Litigation Counsel Russ Ryan highlight the petition for cert in Murphy v. SEC.
Moore v. Harper & the Independent State Legislature Theory
Vec discusses the recent the U.S. Supreme Court ruling in Moore v. Harper and the independent state legislature theory.
See omnystudio.com/listener for privacy information.
NCLA Asks U.S. District Court to Stop Unconstitutional Suspension of Circuit Judge Pauline Newman
Chief Judge Kimberly Moore and the Judicial Council of the U.S. Court of Appeals for the
Federal Circuit have indefinitely suspended highly-respected veteran Judge Pauline Newman from hearing new cases—and they did so before investigating her. The 1980 Judicial Conduct and Disability Act does not authorize such indefinite or pre-investigatory suspensions. Another federal statute requires Federal Circuit panels to be comprised of a fair draw from all the Court’s active judges. Hence, suspending Judge Newman also infringes on the right of every Federal Circuit plaintiff and defendant to have their cases heard by a fair draw from all the Court’s active judges. Moreover, Judge Newman herself has an interest in fulfilling the duties of her judicial office, which cannot be taken away without due process of law. Judges singling out other federal judges for suspension is not due process and violates Congress’ sole constitutional authority to impeach federal judges.
Vec and Senior Litigation Counsel Greg Dolin discuss NCLA’s recent amended Complaint and Motion for a Preliminary Injunction in Newman v. Moore.
See omnystudio.com/listener for privacy information.
NCLA Asks Supreme Court to Reverse Second Circuit, Hold CFPB’s Funding Method Unconstitutional
The Consumer Financial Protection Bureau is an outlier agency, and the U.S. Supreme Court should overturn its illegitimate funding method, NCLA has argued in a petition for a writ of certiorari filed in the case of Law Offices of Crystal Moroney v. CFPB. In October, the U.S. Court of Appeals for the Fifth Circuit decided in Community Financial Services Assoc. of America, Ltd. v. CFPB that the agency’s funding structure violates the Appropriations Clause of the U.S. Constitution. The Second Circuit panel in Moroney’s case explicitly disagreed with the Fifth Circuit, ruling in March that CFPB’s funding method was okay because it was “authorized by Congress and bound by specific statutory provisions.”
Mark and Vec discuss NCLA’s cert petition in Law Offices of Crystal Moroney v. CFPB.
Update in Judge Newman v. Chief Judge Moore
NCLA Senior Litigation Counsel Greg Dolin joins the show to share updates in Newman v.
Moore, NCLA’s recent lawsuit defending Federal Circuit Judge Pauline Newman against Chief Judge Kimberly A. Moore’s unlawful efforts to oust her from the judiciary.
See omnystudio.com/listener for privacy information.
Government-Directed Social Media Censorship on Trial
NCLA appeared before Judges Boggs, White, and Bush of the U.S. Court of Appeals for the Sixth Circuit for oral arguments in a major lawsuit against Biden Administration officials for directing social media companies to censor viewpoints that conflicted with the government’s Covid-19 messaging. This is a gross violation of the First Amendment. Mark and Vec discuss NCLA’s oral argument in Changizi v. HHS.
Prof. Philip Hamburger’s “How the Government Justifies Its Social-Media Censorship”
Mark and Vec break down NCLA Founder Professor Philip Hamburger’s recent Wall Street
Journal piece, “How the Government Justifies Its Social-Media Censorship.”
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NCLA Cert Petition Joins Effort Asking U.S. Supreme Court to Overturn Chevron and Scrap Fishy Rule
The U.S. Department of Commerce’s National Oceanic and Atmospheric Administration and its National Marine Fisheries Service have imposed an unconstitutional rule requiring fishing companies to pay for at-sea government monitoring of their herring catch. Unfortunately, relying on Chevron deference to do the heavy lifting, the First Circuit Court of Appeals upheld that rule. NCLA has petitioned the U.S. Supreme Court for a writ of certiorari in Relentless Inc., et al. v. Dept. of Commerce, et al., seeking to overturn the Chevron precedent and vacate the rule. Mark touts NCLA’s recent cert petition.
The SEC’s Continuing Control Deficiency Cover Up
NCLA Senior Litigation Counsel Peggy Little joins Mark to discuss the U.S. Securities and
Exchange Commission’s continuing control deficiency cover up.
See omnystudio.com/listener for privacy information.
U.S. Forest Service Illegitimately Created Crimes, Prosecuted Skier over Instagram Post
NCLA filed an opening brief with the U.S. Court of Appeals for the Tenth Circuit, appealing its client David Lesh’s contested criminal convictions for violating two regulations promulgated by the U.S. Forest Service. NCLA argues that the government failed to prove essential elements of its allegations, and it punished Mr. Lesh in violation of his First Amendment free speech rights.
In addition, because these regulatory violations are classified as so-called petty offenses, the courts below denied Mr. Lesh his Sixth Amendment right to a trial by jury. Finally, Lesh’s
convictions must be overturned because the regulations USFS promulgated specify criminal violations, a legislative function that is solely Congress’s prerogative.
NCLA Litigation Counsel Kara Rollins describes the issues in the Tenth Circuit appeal in U.S. v. Lesh.
NCLA Calls Out CPSC Commissioner Trumka’s Deliberate Efforts to Ban DockATot
Infant Loungers
NCLA has sent a formal letter to the U.S. Consumer Product Safety Commission detailing how CPSC, and Commissioner Richard Trumka in particular, have severely violated the
constitutional and statutory rights of NCLA client Wildchild Stockholm, Inc. Wildchild, founded by mom and entrepreneur Lisa Furuland Kotsianis, designs and imports the award-winning, Scandinavian-inspired DockATot® Deluxe+ docks. The letter states that Commissioner Trumka has taken deliberate actions and made specific statements that infringe on Wildchild’s constitutional right to have a fair and impartial tribunal.
Kara Rollins explains the latest developments in this case
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Hopelessly Compromised SEC Dismisses Dozens of Cases Due to Widespread Agency Misconduct
The U.S. Securities and Exchange Commission (SEC) has dismissed dozens of enforcement cases, including two involving current NCLA clients (Michelle Cochran, Marian Young) and one of a former client (Christopher Gibson). The agency revealed on June 2 that members of its enforcement staff had gained illicit access to confidential adjudicative documents and downloaded them in far more cases than originally reported, exposing rot in a hopelessly compromised in-house adjudication regime.
Vec and Mark are joined by NCLA Senior Litigators Russ Ryan and Peggy Little to discuss the SEC dismissing our clients’ cases and dozens others following NCLA’s unanimous Supreme Court win in SEC v. Cochran.
See omnystudio.com/listener for privacy information.
And the Winner of the 2023 King George III Prize Is…
NCLA Director of Engagement Clegg Ivey wraps up the King George III Prize for the worst
abuser of civil liberties with Mark and Vec.
NCLA Endorses Request for U.S. Supreme Court to Rule on ATF’s Unilateral Bump Stock Ban
NCLA has filed a brief agreeing that the U.S. Supreme Court should grant the U.S. Solicitor General’s cert petition in the Garland v. Cargill case. That petition asks the Court to hear NCLA’s challenge to the Bureau of Alcohol, Tobacco, Firearms and Explosives’ unilateral bump stock ban. Contrary to the Solicitor General, however, NCLA’s brief urges the Court to affirm the recent en banc decision of the U.S. Court of Appeals for the Fifth Circuit, which held that ATF’s regulatory ban conflicts with the federal statute defining “machineguns.”
Mark explains NCLA’s brief.
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Update in Missouri v. Biden.
Vec and NCLA Senior Litigation Counsel Zhonette Brown discuss the recent preliminary
injunction hearing in Missouri v. Biden, NCLA’s case against government-coerced social media censorship.
See omnystudio.com/listener for privacy information.
Battling the Administrative State: Interview with NCLA Founder Philip Hamburger.
Mark and Vec interview NCLA Founder and CEO Prof. Philip Hamburger on why he founded the New Civil Liberties Alliance.
The Problems with Chevron Deference.
Prof. Philip Hamburger details the problems with Chevron deference.
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Challenging the Government’s Censorship of Support Groups for Victims of Covid
Vaccine InjuriesNCLA has filed a lawsuit challenging the federal government’s ongoing efforts to work in
concert with social media companies and the Stanford Internet Observatory’s Virality Project to monitor and censor online support groups catering to those injured by Covid vaccines. This sprawling censorship enterprise has combined the efforts of numerous federal agencies and government actors—including within the White House—to coerce and induce social media platforms to censor, suppress, and label as “misinformation” speech expressed by those who have suffered vaccine-related injuries.
Mark interviews NCLA Litigation Counsel Casey Norman on the Complaint filed in Dressen et al. v. Flaherty et al.
See omnystudio.com/listener for privacy information.
NCLA’s Amicus Win in Calcutt v. FDIC
NCLA Senior Litigation Counsel Russ Ryan joins Mark to describe the U.S. Supreme Court’s per curiam decision in Calcutt v. FDIC, an amicus win for NCLA.
Department of Transportation Dismisses Enforcement Action Against NCLA Client
The U.S. Department of Transportation, Pipeline and Hazardous Materials Safety Administration (PHMSA) has dismissed its enforcement action against NCLA client Polyweave Packaging Inc. in Polyweave Packaging v. U.S. Dept. of Transportation.
NCLA Litigation Counsel Sheng Li explains the recent NCLA victory obtained in Polyweave, wherein the government dismissed all charges against our client.
See omnystudio.com/listener for privacy information.
U.S. Circuit Judge Pauline Newman v. Chief Judge Kimberly Moore Without citing any legal authority and prior to the conclusion of any investigation, U.S. Court of
Appeals for the Federal Circuit Chief Judge Kimberly Moore has removed fellow U.S. Circuit Judge Pauline Newman from hearing cases for an indefinite period. She has also impeded Judge Newman’s access to chambers phone and computer, and unilaterally decided that the judicial assistant working for Judge Newman “is no longer an employee of the Newman chambers.”
Vec discusses NCLA’s new lawsuit, Newman v. Moore, in the U.S. Court of Appeals for the Federal Circuit.
Update in Federal Trade Commission v. Precision Patient Outcomes, Inc.
The Federal Trade Commission, in its initial filing before the U.S. District Court for the Northern District of California, falsely accused Precision Patient Outcomes, Inc. and CEO Margrett Lewis of unlawfully marketing and selling a dietary supplement called COVID Resist. The problem for FTC is PPO and Ms. Lewis never sold such a product—and FTC knows that. During six months or more of investigation, PPO provided FTC clear proof such sales never happened.
Vec discusses NCLA’s latest counterclaims against the Federal Trade Commission in FTC v. PPO.
See omnystudio.com/listener for privacy information.
The Durham Report 2023
Mark interviews FDRLST Senior Legal Correspondent Margot Cleveland on U.S. Department of Justice Special Counsel John Durham’s long-awaited report on the Trump-Russia probe.
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3 & 4
The End of Biden’s Federal Covid-19 Vaccine Mandate
On Thursday, the Biden-Harris Administration officially ended the disgraceful Covid-19 vaccine
mandates it never should have implemented for federal employees and federal contractors. These
unlawful mandates, which were ordered without a vote of Congress, compelled millions of
Americans to take an experimental vaccine without their consent—and, for those with naturally
acquired immunity, against the medical advice of experts. These mandates violated unwilling
recipients’ constitutional rights to bodily integrity and to refuse unwanted medical care, as well
as their statutory right to informed consent.
Vec and Mark discuss the end of the federal vaccine mandate and its consequences.
See omnystudio.com/listener for privacy information.
1
ATF’s Bump Stock Ban Could be Heading to U.S. Supreme Court
The U.S. Department of Justice has filed a petition for a writ of certiorari with the U.S. Supreme
Court in Michael Cargill v. Merrick B. Garland, et al. In January, the full Fifth Circuit bench
ruled that a bump stock does not fall within the definition of “machinegun” as set forth in federal
law. Thus, the Bureau of Alcohol, Tobacco, Firearms and Explosives lacked the statutory
authority to issue the Final Rule banning bump stocks. NCLA represents gun shop owner, Army
veteran, and firearms instructor Michael Cargill of Austin, Texas.
Mark interviews NCLA Senior Litigation Counsel Rich Samp on the government’s cert. petition
in Cargill v. Garland.
2
The 14th Amendment Doesn’t Let the President Extend the Debt Limit
The Fourteenth Amendment doesn’t let the president extend the debt limit. Mark & Vec discuss.
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3
Safety Advocates and Hobby Industry Groups Challenge CPSC’s Unlawful, Irrational
Magnet Ban
The Consumer Product Safety Commission (CPSC) has approved a draconian new “magnet
safety standard” for non-toy products, which broadly bans high-powered hobby magnets for
adults. CPSC relied on flawed studies and failed, contrary to the Consumer Product Safety Act
(CPSA), to properly account for magnets’ benefits or the costs of removing them from the
market. More fundamentally, CPSC is unconstitutionally structured, because it is an independent
agency exercising executive power outside the President’s control. NCLA has filed an opening
brief in Magnetsafety.org, et al. v. CPSC, asking the U.S. Court of Appeals for the Tenth Circuit
to vacate the magnet ban for a second time—this time because it was promulgated in violation of
CPSA provisions by an unconstitutionally structured agency.
Mark interviews NCLA Senior Litigation Counsel Greg Dolin on NCLA’s new magnet ban
lawsuit.
4
Harvard and UNC Face Racial Discrimination Challenge at SCOTUS
Students for Fair Admissions, led by long-time affirmative action critic Edward Blum, has sued
both Harvard and UNC, and asked the U.S. Supreme Court to overrule its prior decisions and
hold that the consideration of race as part of a holistic college admissions process in order to
achieve a diverse student body violates the Equal Protection Clause.
Vec interviews President Devon Westhill of the Center for Equal Opportunity on the upcoming
Supreme Court cases, Students for Fair Admissions v. Harvard and Students for Fair Admissions
v. UNC.
See omnystudio.com/listener for privacy information.
1
Will Chevron Deference Be Overturned?
The U.S. Supreme Court granted cert in Loper Bright Enterprises, et al. v. Raimondo, et al. and
agreed to reconsider Chevron v. NRDC, which instructs courts to defer to a federal agencies’
interpretation of an ambiguous law. NCLA filed an amicus brief in support of Loper Bright
Enterprises’ petition for a writ of certiorari on behalf of similarly situated clients, Relentless
Inc., Huntress Inc., and Seafreeze Fleet LLC, corporations operating in the herring fishery off the
coast of New England. NCLA represents amici as parties in Relentless Inc., et al. v. U.S. Dept. of
Commerce, et al.
Vec comments on the Loper Bright cert grant and the question of whether Chevron deference
will be overturned by the Supreme Court.
2
The NYTimes Attack on Chief Justice Roberts
U.S. Supreme Court Chief Justice John G. Roberts Jr. informed the Senate Judiciary Committee
in a recent letter that he was declining its invitation to testify about ethics rules for the Supreme
Court. The New York Times has since then attacked Chief Justice Roberts, claiming that he is
unfit to serve on the judiciary.
Mark defends Chief Justice Roberts from the New York Times attack for declining to testify
before Congress on SCOTUS ethics.
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3
NCLA Comment Warns Against FTC’s Novel Assertion of Power in Proposed Non-
Compete Rule
The Federal Trade Commission’s (FTC) proposed “Non-Compete Clause Rule” would ban the
use of non-compete clauses as “an unfair method of competition.” NCLA has filed a Comment
objecting to FTC’s attempt to federalize state contract law with virtually no attention to the
various interests of the states and market participants developed by the contract law over more
than a hundred years. In particular, the Proposed Rule completely ignores the traditional legal
analysis of non-competes based on factors such as length of time, subject matter, or geographic
scope.
Mark and Vec discuss NCLA’s Comment on FTC’s non-compete rule.
4
The Third Annual King George III Prize: “Flagrant Four”
NCLA Director of Engagement Clegg Ivey joins Mark and Vec to discuss the “Flagrant Four” in
NCLA’s King George III Bracket for worst abuser of civil liberties.
See omnystudio.com/listener for privacy information.
1
Renowned Federal Judge Retains NCLA to Oppose CAFC Chief Judge’s Unlawful Efforts
to Oust Her
NCLA has written to Chief Judge Kimberly A. Moore of the U.S. Court of Appeals for the
Federal Circuit expressing concern with her efforts to remove fellow U.S. Circuit Judge Pauline
Newman. Chief Judge Moore claims that Judge Newman “is unable to discharge all duties of the
office by reason of mental or physical disability.” Moore has appointed a three-judge special
committee—including herself—to investigate the matter.
Mark, Vec, and NCLA Senior Litigation Counsel Greg Dolin discuss the move to remove Judge
Newman from the bench.
2
Challenging SEC’s ‘Hotel California’ Administrative Adjudication Regime
Since 2014, the U.S. Securities and Exchange Commission (SEC) has been inspecting,
investigating, and prosecuting Marian Young and her former investment business Saving2Retire,
LLC, with no end in sight. SEC’s adjudication regime has deprived them of a jury trial and the
Commission itself is now willfully refusing to decide their appeal from an administrative law
judge’s (ALJ) initial decision issued back in August 2019, effectively blocking them from access
to federal court review for nearly four years. NCLA has filed a petition on behalf of Ms. Young
and her company, asking the U.S. Court of Appeals for the Fifth Circuit to issue a writ of
mandamus against the SEC Commissioners in In re Marian P. Young and Saving2Retire, LLC
that would compel them to either dismiss the case or else promptly decide the appeal in the
agency’s eight-year-old administrative matter.
NCLA Senior Litigation Counsel Russ Ryan joins the show to talk through In re Marian P.
Young and Saving2Retire, LLC.
See omnystudio.com/listener for privacy information.
3
Federal Trade Commission v. Precision Patient Outcomes, Inc.
FTC’s lawsuit against Precision Patient Outcomes, Inc. (PPO), a California-based company
which, among other things, develops dietary supplements, and its CEO, Margrett Lewis, is
unlawful. NCLA argues FTC cannot rightfully exercise executive power by initiating and
prosecuting this lawsuit, especially considering the Justice Department refused to bring this case.
Congress cannot empower FTC Commissioners to file lawsuits while shielding them from at-will
removal by the President.
Vec discusses FTC v. PPO.
4
The Mailbag: Can Congress Impose Public Benefits Subject to Mandatory Arbitration
Mark and Vec answer a submitted question on whether Congress can impose public benefits
subject to mandatory arbitration.
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1 & 2
NCLA Wins Big at Supreme Court, Nets Unanimous Decision
In an historic ruling, the U.S. Supreme Court has held that Texas Accountant Michelle Cochran
has the right to challenge the constitutionality of her Administrative Law Judge’s (ALJ) removal
protections in federal court before undergoing an administrative adjudication.
NCLA Senior Litigation Counsel Peggy Little joins Vec and Mark to discuss NCLA’s recent
Supreme Court win in SEC v. Cochran.
See omnystudio.com/listener for privacy information.
3 & 4
Jury Trials in Administrative Hearings
NCLA filed an amicus curiae brief in Burgess v. FDIC, et al., urging the U.S. Court of Appeals
for the Fifth Circuit to redress the Federal Deposit Insurance Corporation’s (FDIC) unlawful
enforcement action against Cornelius Campbell Burgess, which the agency pursued through its
in-house administrative court. NCLA argues that FDIC’s allegations must be tried in front of a
jury rather than an Administrative Law Judge (ALJ). FDIC’s current ALJ enforcement regime
deprives Burgess of his Seventh Amendment right to a jury trial.
Mark and Vec discuss jury trials in administrative hearings with NCLA Senior Litigation
Counsel Greg Dolin.
See omnystudio.com/listener for privacy information.
1 & 2
The King George III Prize: “Elitist Eight”
In keeping with the spirit of the madness of March and King George, we started with a bracket of
32 nominees comprising the state and federal agencies and the bureaucrats who committed the
worst abuses of civil liberties in 2022.
Vec and Mark interview NCLA Director of Engagement Clegg Ivey on the “Elitist Eight.”
See omnystudio.com/listener for privacy information.
3 & 4
NCLA and Mackinac Center Challenge ED’s Unlawful Extensions of Pause on Student Loan Payments NCLA has filed a lawsuit, Mackinac Center for Public Policy v. U.S. Department of Education, Miguel Cardona, and Richard Cordray, urging the U.S. District Court for the Eastern District of Michigan to stop the Department of Education’s pause on student loan payments. Congress
initially suspended monthly payment obligations and interest accrual on federally held student loans for a period limited to six months in response to the Covid-19 pandemic. That pause expired in September 2020.
Mark and Vec talk through NCLA’s new lawsuit, Mackinac Center for Public Policy v.
Department of Education, et al., and the ED’s unlawful extensions of pause on student loan
payments.
See omnystudio.com/listener for privacy information.
1 & 2
NCLA Challenges IG Committee’s Structure and Illegal Interference with Inspector
General Operations for three years, Joseph V. Cuffari, a Presidentially-appointed and Senate-confirmed Inspector General (IG) has been endlessly harassed and had his office’s resources drained by a series of baseless inquiries headed by the Council of the Inspectors General on Integrity and Efficiency’s (CIGIE) Integrity Committee (IC). IGs are designed by law to be independent, and the agencies
they oversee are not permitted to interfere with their investigations. But the IC and its persecutory approach are unlawfully interfering with Plaintiffs’ legal responsibilities. NCLA has filed a Complaint in Fredricks, et al. v. Council of the Inspectors General on Integrity and Efficiency, et al. in the U.S. District Court for the Eastern District of Virginia challenging CIGIE/IC's investigations, which have had a chilling effect on the Plaintiffs’ work and actions. Mark and Vec discuss NCLA’s Complaint in Fredricks, et al. v. CIGIE, et al.
See omnystudio.com/listener for privacy information.
3
Federal Judge Vacates Dept. of Ed.’s Discriminatory Fulbright Rule
Judge David C. Guaderrama of the U.S. District Court for the Western District of Texas has
granted Plaintiff Veronica Gonzalez’s Motion for Preliminary Injunction in a lawsuit challenging
the U.S. Department of Education’s discriminatory evaluation process for the Fulbright-Hays
Doctoral Dissertation Research Abroad Fellowship. NCLA brought Edgar Ulloa Lujan, Samar
Ahmad, and Veronica Gonzalez v. U.S. Department of Education, et al. in opposition to the
Department’s “native language penalty.” NCLA believes the rule unlawfully discriminates based
on national origin, because it essentially disqualifies American citizens who immigrated here
from non-English-speaking countries and children of such immigrants from receiving the
Fulbright-Hays Fellowship to conduct dissertation research in any country that speaks the
language of their national heritage.
Mark interviews NCLA Litigation Counsel Sheng Li on his win challenging Fulbright-Hays
language requirements.
4
2023 King George III Prize: The Sour 16
In keeping with the spirit of the madness of March and King George, NCLA has prepared a
bracket of 32 nominees comprising the state and federal agencies as well as the bureaucrats who
committed the worst abuses of civil liberties in 2022.
NCLA Director of Engagement Clegg Ivey joins the show to discuss the nominees who
advanced to the Sour 16.
See omnystudio.com/listener for privacy information.
1
In NCLA Amicus Win, Full 5th Cir. Rules Against Biden’s Federal Employee Vaccine Mandate
NCLA and its class-action clients in James Joseph Rodden, et al. v. Dr. Anthony Fauci, et al.,
praise the decision of the en banc U.S. Court of Appeals for the Fifth Circuit to protect the
fundamental rights of government workers to refuse unwanted medical treatment as a condition
of their employment. The full bench has affirmed the U.S. District Court for the Southern
District of Texas’s original injunction stopping President Biden’s unprecedented order. His
vaccine mandate had required federal civilian employees to be jabbed, forcing an unwanted
medical procedure on them that provides no benefit to those with naturally acquired immunity to
Covid-19 and serves no legitimate need of their employer. NCLA filed an amicus brief in this
case asking the Fifth Circuit to reinstate a lower court decision that paused the Covid-19 vaccine
mandate for federal workers that a split Fifth Circuit panel had vacated in April 2022.
Vec and Mark discuss our amicus win in Feds for Medical Freedom v. Biden.
2
Judge Relies on NCLA’s Amicus Brief in Key Ruling Limiting Antitrust Liability
Judge Lewis J. Liman of the U.S. District Court for the Southern District of New York has
unsealed an opinion in In re Bystolic Antitrust Litigation, dismissing a major antitrust lawsuit for
failing to state a claim against eight pharmaceutical companies including Forest Labs (now a part
of AbbVie). The decision marked a victory for NCLA, which filed an amicus curiae brief urging
dismissal. Judge Liman’s opinion highlighted NCLA’s net-payment argument as a main reason
for ruling that the antitrust plaintiffs failed to show that Forest’s payments were “unjustified,”
given the services it received in return.
Mark interviews NCLA Senior Litigation Counsel Rich Samp on his amicus win in In re Bystolic
Antitrust Litigation.
See omnystudio.com/listener for privacy information.
The Silicon Valley Bank Bailout
On March 10, 2023, Silicon Valley Bank failed, being the second-largest bank failure in U.S. history. The U.S. government then took extraordinary steps to stop the potential banking crisis, assuring all depositors that they could access all their money quickly, even as another major bank was shut down.
Vec and Mark discuss the bailout at Silicon Valley Bank.
NCLA Comment Encourages Sentencing Commission to Alleviate Harms Inflicted by Judicial Deference
NCLA has filed a Comment partially supporting the United States Sentencing Commission’s proposed amendments to the U.S. Sentencing Guidelines. The amendments would address circuit conflicts that have emerged regarding two inchoate offenses. NCLA sees the amendments as a first step to alleviating harm that Stinson deference inflicts. Still, federal judges must stop deferring to Guidelines commentary, because unlike the Guidelines themselves, the Commission’s commentary never receives an up-or-down vote from Congress.
NCLA Litigation Counsel Kara Rollins joins to talk through NCLA’s recent Comment filed with the U.S. Sentencing Commission.
See omnystudio.com/listener for privacy information.
Federal Judge Rejects Motion to Dismiss NCLA's Government-Induced Censorship Lawsuit
In a thorough and well-reasoned decision, Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana has denied government defendants’ motion to dismiss in State of Missouri, et al. v. Joseph R. Biden, Jr., et al. NCLA represents renowned epidemiologists Drs. Jay Bhattacharya and Martin Kulldorff, as well as Dr. Aaron Kheriaty and Ms. Jill Hines, in a lawsuit that has exposed an elaborate, multi-agency federal government censorship regime.
NCLA Litigation Counsel Jenin Younes joins the show to discuss the decision in Missouri v. Biden.
See omnystudio.com/listener for privacy information.
3 & 4
Stanford Law and the Future of Legal Education
At a recent Stanford Law Federalist Society event, Judge Kyle Duncan of the U.S. Court of
Appeals for the Fifth Circuit was shouted down and heckled by student protesters who made it
impossible for him to deliver his speech.
Vec and Mark discuss what happened at Stanford Law and speak about the future of legal education.
See omnystudio.com/listener for privacy information.
1 & 2
The Third Annual King George III Prize Bracket
NCLA is proud to announce the 2023 King George III Prize – an annual campaign calling out
the most egregious violations of our fundamental civil liberties by people and institutions
responsible for those abuses.
NCLA Director of Engagement Clegg Ivey joins the show to discuss the 2023 bracket.
See omnystudio.com/listener for privacy information.
3
SEC’s Controversial Climate Disclosure Rule
The SEC issued a controversial climate risk disclosure rule that requires publicly traded
companies to disclose to investors how their operations affect the climate and contribute to
carbon emissions.
Mark interviews National Center for Public Policy Research Fellow and Free Enterprise Project
Director Scott Shepard on SEC’s new rule.
4
NCLA Amicus Brief Calls for SCOTUS Review of Unconstitutional FDIC ALJ Tenure
Protections
NCLA has filed an amicus curiae brief urging the Supreme Court to review a case, Calcutt v.
Federal Deposit Insurance Corporation, that challenges the tenure protections enjoyed by
FDIC’s administrative law judges. In its brief, NCLA argues that the U.S. Court of Appeals for
the Sixth Circuit declined to decide this important separation-of-powers question based on a
mistaken belief that it could afford Calcutt no remedy.
Mark interviews NCLA Senior Litigation Counsel Russ Ryan on the amicus brief in Calcutt v.
FDIC.
See omnystudio.com/listener for privacy information.
1 & 2
NCLA Lawsuit Reveals Widespread Government-Induced Social Media Censorship
NCLA, the Attorney General of Missouri, and the Attorney General of Louisiana have filed a
Supplemental Preliminary Injunction and Proposed Findings of Fact in the censorship lawsuit,
State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al. The new filings are the first
written documents to put together all facts gathered through discovery thus far. They paint a
comprehensive picture of an administration and federal officials engaging in a lawless, expansive
censorship campaign that employed illicit tactics—from pressure and coercion to collusion and
coordination—on social media companies to suppress the airing of disfavored perspectives on
Covid-19, and other topics.
Vec discusses the supplemental injunction and the statement of facts in Missouri v. Biden.
See omnystudio.com/listener for privacy information.
Fifth Circuit Tosses Back Rule Trying to Track Charter Boats Without a Warrant
In a landmark win for charter boat fishermen across the Gulf of Mexico, the U.S. Court of Appeals for the Fifth Circuit has set aside a controversial Final Rule issued by the National Marine Fisheries Service, which required 24-hour GPS tracking of recreational charter boat fishing vessels and reporting of confidential economic data. As Judge Jennifer Walker Elrod wrote, “in promulgating this regulation, the Government committed multiple independent Administrative Procedure Act violations, and very likely violated the Fourth Amendment.” The ruling is major for many reasons, including that the government tried to claim that charter boat fishing is a “closely-regulated industry” to which the Fourth Amendment does not apply.
Vec discusses NCLA’s recent win in Mexican Gulf Fishing Company v. U.S. Department of Commerce.
See omnystudio.com/listener for privacy information.
SCOTUS Hears Oral Argument in Student Loan Lawsuits
This week the U.S. Supreme Court heard oral arguments in two major cases challenging President Biden’s student loan debt cancellation plan. Mark and Vec discuss oral argument in Department of Education v. Brown & Biden v. Nebraska.
See omnystudio.com/listener for privacy information.
3
SEC’s Mutual Fund Proxy Voting
The U.S. Securities and Exchange Commission in November adopted a new rule that requires
certain investment funds to reveal more about how they vote on shareholder ballots, including on
pay packages for top executives.
Mark describes SEC’s proxy vote regulations for mutual funds.
4
DOJ Opposes SCOTUS Review of NMFS’s at-Sea Monitor Rule
In Loper Bright Enterprises, et al. v. Raimondo, et al., the U.S. Department of Justice has filed a
brief in opposition to Loper Bright Enterprises’ petition for a writ of certiorari before the U.S.
Supreme Court. NCLA clients Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC,
corporations operating in the herring fishery off the coast of New England, have filed an amicus
curiae brief in support of Loper Bright Enterprises’ cert. petition.
Vec discusses the government’s brief in Loper Bright.
See omnystudio.com/listener for privacy information.
1
Elon Musk Challenges SEC Gag Order
After a jury cleared Tesla Inc CEO Elon Musk of defrauding shareholders in 2018 tweets
boasting that he had secured funding to take Tesla private, Musk is now trying to get rid of his
SEC gag order.
Mark and Vec discuss Musk’s challenge against unconstitutional prior restraints on his ability to
talk and tweet about Tesla.
2
Ninth Circuit Reinstates Trump-Era Clean Water Act Rule
A Ninth Circuit panel recently restored a Trump-era rule that limits the power of states and tribes
to restrict new development under the Clean Water Act. The rule affected the permitting and
relicensing process for thousands of industrial projects, including natural gas pipelines,
hydroelectric plants, wastewater treatment facilities and construction sites.
Mark discusses the new Ninth Circuit case consistent with the rule of law.
See omnystudio.com/listener for privacy information.
3
The Government’s “Disinformation” Blacklist
According to a recent investigation in the Washington Examiner, the U.S. State Department since
2018 has given sizeable grants to Global Disinformation Index (GDI), a London-based group
which feeds a blacklist to advertisers to keep ads off conservative media outlets.
Mark and Vec discuss the government funds from the State Department to eliminate protected
First Amendment speech.
4
SEC’s Unconstitutional Climate Disclosure Rules
In 2022, the U.S. Securities and Exchange Commission proposed new requirements for public
companies regarding their public disclosure of climate-related risks. The proposed rules would
require public companies to disclose their overall greenhouse gas emissions, including emissions
generated from both (1) the production of any inputs from their suppliers and (2) the use of their
products/services.
Vec examines the use of securities law to affect climate change.
See omnystudio.com/listener for privacy information.
1
FTC Commissioner Wilson Announces Resignation
Commissioner Christine Wilson has recently announced her plans to soon resign from the
Federal Trade Commission due to FTC Chair Lina Khan’s “disregard for the rule of law and due
process.” Without Wilson, the FTC will have three remaining members of what is usually a five-
member panel.
NCLA Litigation Counsel Kara Rollins joins Vec to discuss the resignation of Commissioner
Wilson.
2
NCLA Warns Dept. of Education that Proposed Student-Loan Plan Lacks Congressional
Appropriation
The U.S. Department of Education’s proposed rule “Improving Income-Driven Repayment for
the William D. Ford Federal Direct Loan Program” represents the latest effort to achieve
through administrative fiat a massive and untargeted cancellation of student-loan debt that
elected members of Congress have repeatedly declined to legislate, authorize, or pay for. NCLA
has filed a Comment objecting to ED’s planned overhaul of income-driven repayment, on the
grounds that the agency not only lacks the statutory authority to promulgate the proposed rule,
but its statutory interpretation would also constitute an unconstitutional delegation of legislative
power from Congress in violation of the Vesting and Appropriations Clauses of the Constitution.
Mark and NCLA Litigation Counsel Sheng Li talk through NCLA’s Comment on ED’s newest
unlawful student loan forgiveness program.
See omnystudio.com/listener for privacy information.
3
NCLA Amicus Brief Challenges CPSC’s Unconstitutional Shielding of Commissioners
from Removal
NCLA has filed an amicus brief in Window Covering Manufacturers Association v. CPSC, a case
before the U.S. Court of Appeals for the D.C. Circuit. The Window Covering Manufacturers
Association (WCMA) is challenging a new Consumer Product Safety Commission (CPSC) rule
governing the length of cords for custom-made blinds. Petitioners challenge the rule on several
grounds, including: a) CPSC’s failure to comply with the Consumer Product Safety Act, and b)
the Commission’s unconstitutional structure shielding CPSC commissioners from at-will
removal.
Vec interviews NCLA Senior Litigation Counsel Greg Dolin on WCMA v. CPSC.
4
IRS Unlawfully Seizes Trove of Cryptocurrency Data
NCLA, which represents Plaintiff James Harper in Harper v. Rettig, has filed a response to IRS’s
Motion to Dismiss the lawsuit, arguing that IRS violated Mr. Harper’s statutory, Fourth, and
Fifth Amendment rights by seizing his documents without probable cause to believe he had
under-reported his income or failed to pay tax and by denying him procedural due process to
contest the seizure.
In November 2016, IRS issued a third-party summons to Coinbase, a large cryptocurrency
exchange, demanding that the company turn over the financial records of hundreds of thousands
of unnamed customers. This massive trove of documents included not only customer
identification information but also records of customer account activity and periodic statements
of account.
Mark discusses IRS’s violations of due process in Harper v. Rettig.
See omnystudio.com/listener for privacy information.
1
First Amendment Issues in Lawsuit Against FTC
NCLA filed a Motion to Dismiss the Federal Trade Commission’s (FTC) lawsuit against
Precision Patient Outcomes, Inc. (PPO), and its CEO, Margrett Lewis. NCLA argues FTC cannot
rightfully exercise executive power by initiating and prosecuting this lawsuit, especially
considering the Justice Department refused to bring this case. Congress cannot empower FTC
Commissioners to file lawsuits while shielding them from at-will removal by the President.
Vec discusses the First Amendment issues in FTC v. PPO.
2
NCLA Supports Doctors’ Suits Against California Law Censoring Covid Medical Advice
NCLA filed an amicus curiae brief in the U.S. Court of Appeals for the Ninth Circuit in support
of plaintiffs challenging Assembly Bill 2098, which empowers the Medical Board of California
to discipline physicians who “disseminate” information regarding Covid-19 that departs from the
“contemporary scientific consensus.” Last month, NCLA obtained a preliminary injunction on
behalf of five doctors in a successful challenge to the same law in Høeg, et al. v. Newsom, et
al. The State of California is not appealing that loss. It apparently prefers to defend appeals
against the unsuccessful plaintiffs in McDonald v. Lawson (from the Central District of Calif.)
and Couris v. Lawson (from a stay in the Southern District of Calif.). NCLA’s amicus brief will
ensure that the Ninth Circuit sees the arguments that prevailed before Judge William Shubb in
the Eastern District of Calif. in Høeg v. Newsom.
Mark and Vec discuss NCLA’s amicus brief against AB 2098.
See omnystudio.com/listener for privacy information.
Rhode Island Oral Surgeon Continues Battling Gov’t Retaliation over Opposing Vaccine Mandate
The State of Rhode Island unlawfully prevented Dr. Stephen Skoly from practicing critically needed dental care in retaliation for his public opposition to the temporary emergency regulation mandating that “all health care workers and health care providers be vaccinated against COVID- 19.” Statements by and behavior of state officials make clear that administrative actions against Dr. Skoly were taken precisely because he publicly voiced his opposition and would not have been taken but for Dr. Skoly’s speech. NCLA has filed a response to the government’s Motion to Dismiss Skoly v. McKee, et al., in the U.S. District Court for the District of Rhode Island.
Mark talks through Dr. Skoly’s opposition to summary judgment in Skoly v. Mckee.
Humphrey’s Executor in FTC v. PPO
NCLA has filed a Motion to Dismiss the Federal Trade Commission’s (FTC) lawsuit against Precision Patient Outcomes, Inc. (PPO), a California-based company which develops precision medical solutions for burn and wound care, scar management, and skin-renewing technologies, and its CEO, Margrett Lewis. Among other things, NCLA argues the Supreme Court’s blessing the FTC of yesteryear in Humphrey’s Executor does not imply that the Commission newly vested with truly executive powers would be similarly endorsed. When Humphrey’s Executor was decided, the FTC did not possess the power to initiate suits or to seek any penalties. This core executive power was only added to the FTC’s authority in the 1970s. The Supreme Court itself has recognized that its 1935 “conclusion that the FTC did not exercise executive power has not withstood the test of time."
Vec discusses Humphrey’s Executor in FTC v. PPO.
See omnystudio.com/listener for privacy information.
3
California Judge Grants Injunction to NCLA Clients, Halts Implementation of Law
Censoring Doctors
Senior Judge William Shubb of the U.S. District Court for the Eastern District of California has
granted NCLA’s motion for preliminary injunction in Høeg, et al. v. Newsom, et al. He held that
plaintiffs have standing to bring a legal challenge, and enjoined implementation of Assembly Bill
(AB) 2098 in California. The controversial state law empowered the Medical Board of California
to discipline physicians who “disseminate” information regarding Covid-19 that departs from the
“contemporary scientific consensus.” Judge Shubb stated that “the ‘contemporary scientific
consensus’ lacks an established meaning within the medical community,” and thus, because the
“scientific consensus” is so ill-defined and vague, the physician plaintiffs in the lawsuit are
“unable to determine if their intended conduct contradicts the scientific consensus, and
accordingly ‘what is prohibited by the law.’”
NCLA Senior Litigation Counsel Greg Dolin joins Mark to discuss NCLA’s recent win in Høeg
v. Newsom.
4
11 th Circuit Holds Congress’ State Tax Cut Ban Unconstitutional, in NCLA Win
The 11 th Circuit has handed down a ruling in West Virginia v. U.S. Department of the Treasury,
upholding the district court’s decision to permanently enjoin the Secretary of the Treasury from
enforcing a “Tax Cut Ban” against the 13 states that sued her: West Virginia, Alabama, Alaska,
Arkansas, Florida, Iowa, Kansas, Montana, New Hampshire, Oklahoma, South Carolina, South
Dakota, and Utah. The ruling marks NCLA’s second amicus win on appeal—following
Commonwealth of Kentucky and State of Tennessee v. Janet Yellen, et al.—in lawsuits contesting
Congress’s attempt to usurp state taxing authority.
Vec interviews NCLA Litigation Counsel Sheng Li on the decision.
See omnystudio.com/listener for privacy information.
1
Challenging PCAOB’s Modern Star Chamber Proceedings
NCLA has filed a complaint in the U.S. District Court for the Northern District of Texas seeking
declaratory and injunctive relief from the Public Company Accounting Oversight Board’s secret,
unaccountable, and inherently biased prosecutorial processes. With no meaningful supervision
by any government official appointed or directly removable by the President, and using funds
raised by private taxes with no Congressional appropriation or oversight, PCAOB has
investigated and brought a secret prosecution seeking to strip NCLA’s client of his livelihood and
impose quasi-criminal monetary penalties—without a jury trial, due process of law, an impartial
adjudicator, or any constitutional accountability.
Mark and NCLA Senior Litigation Counsel Russ Ryan discuss NCLA’s complaint against
PCAOB.
2
CFTC Tries to Shut Down PredictIt Market
After the Commodities Futures Trading Commission (CFTC) issued an order to the PredictIt
political prediction market to close by February 15th, 2023, a group challenged the agency in
federal court, arguing that the shutdown order violates the Administrative Procedure Act. The
Fifth Circuit Court of Appeals has now granted an injunction allowing the PredictIt market to
continue operating while the court considers granting longer term relief.
Vec and Russ talk through the PredictIt market and CFTC’s actions.
See omnystudio.com/listener for privacy information.
3
NCLA Calls on 11th Cir. to Vacate District Court’s Judgment in Case SEC Never Should
Have Brought
NCLA has filed an opening brief on behalf of its clients in U.S. Securities and Exchange
Commission v. Spartan Securities Group, LTD., et al. in the U.S. Court of Appeals for the
Eleventh Circuit. NCLA contends that the district court committed multiple legal errors and
abused its discretion throughout this litigation to the detriment of Appellants Micah Eldred, Carl
Dilley, Spartan Securities Group, Island Capital Management, and their legal, procedural, and
constitutional rights.
Vec discusses the appellate brief filed in SEC v. Spartan Securities.
4
The FBI Paid Social Media to Do Its Dirty Work
Mark and Vec discuss the FBI’s payments to social media companies to censor Americans online.
See omnystudio.com/listener for privacy information.
1
FTC Overreaches on Noncompete Contracts
The Federal Trade Commission (FTC) has recently proposed a new rule that would ban
employers from issuing noncompete agreements on their workers. The proposed rule would
suppress wages, hinder innovation, and block entrepreneurs from starting businesses.
Vec criticizes FTC overreach on noncompete contracts.
2
NCLA and CVAF Ask Dept. of Veterans Affairs to Amend Regulation Denying Benefits to
Disabled Vets
NCLA and Concerned Veterans for America Foundation have filed a petition asking the U.S.
Department of Veterans Affairs to amend its controversial regulation regarding the payment of
benefits to veterans who have been deemed eligible for disability benefits but who later return
temporarily to active duty. The current regulation denies many disabled veterans the benefits to
which federal law entitles them.
Mark describes NCLA’s petition on behalf of veterans to the Department of Veterans Affairs.
See omnystudio.com/listener for privacy information.
3 & 4
NCLA Wins Major Fifth Circuit en Banc Decision Tossing ATF’s Bump Stock Ban
The full Fifth Circuit bench has ruled that a bump stock does not fall within the definition of
“machinegun” as set forth in federal law. NCLA represents gun shop owner, Army veteran, and
firearms instructor Michael Cargill in Michael Cargill v. Merrick B. Garland, et al.
NCLA argued that: (1) the Final Rule conflicts with the statutory definition of a machinegun and
thus exceeds ATF’s authority; (2) ATF’s construction is not entitled to Chevron deference; (3) to
the extent that the courts determine that the definition of machinegun is ambiguous with respect
to bump stocks, they should apply the rule of lenity to determine that bump stocks are not
machineguns; and (4) if the statute were interpreted as authorizing ATF’s declaration that bump
stocks are prohibited machineguns, then the statute would be an unconstitutional delegation of
Congress’s legislative powers.
The Fifth Circuit agreed with NCLA on every one of these points.
Mark and Vec discuss NCLA’s Fifth Circuit win.
See omnystudio.com/listener for privacy information.
1
Latest Developments on Gov't Social Media Censorship
John interviews NCLA Litigation Counsel Jenin Younes on the latest developments in the social
media censorship lawsuits that have exposed a sprawling federal censorship regime.
2
CPSC Faces Backlash After Considering Gas Stove Ban
Vec, Mark, and Jenin discuss the U.S. Consumer Product Safety Commission’s consideration of
a ban on gas stoves.
See omnystudio.com/listener for privacy information.
3
Ohio Supreme Court Rejects Deference to Agency Interpretations
The Supreme Court of Ohio, in a 4-3 opinion, denounced agency deference and ruled that the
state’s courts need not defer to agency interpretations of ambiguous statutes. NCLA filed an
amicus brief in TWISM Enterprises, LLC v. State Board of Registration for Professional
Engineers and Surveyors, urging the Supreme Court of Ohio to declare agency deference
unconstitutional.
Vec touts the Ohio Supreme Court doing away with state deference.
4
Dept. of Education’s Fulbright-Hays Application Includes Discriminatory “Native
Language Penalty”
Undermining the spirit of international openness and exchange, the U.S. Department of
Education’s application process for the Fulbright-Hays Fellowship significantly disadvantages
immigrants from non-English-speaking countries and children of such immigrants. NCLA has
filed a Motion for Preliminary Injunction in the lawsuit, Edgar Ulloa Lujan, Samar Ahmad, and
Veronica Gonzalez v. U.S. Department of Education, et al., asking the U.S. District Court for the
Western District of Texas to require the Department of Education to reevaluate Plaintiff
Veronica Gonzalez’s 2022 application for the Fulbright-Hays Doctoral Dissertation Research
Abroad Fellowship without applying a “native language penalty.”
Vec explains NCLA’s preliminary injunction motion to stop the Dept. of Education from
discriminating on the basis of country of origin in Fulbright scholarships.
See omnystudio.com/listener for privacy information.
1
Government Social Media Interference
Vec interviews NCLA Litigation Counsel Jenin Younes about developments in Missouri v.
Biden, NCLA’s joint lawsuit with the Missouri and Louisiana attorneys-general against
government censorship online.
2
California’s Effort to Silence Doctors
A California law signed by Governor Gavin Newsom empowers the Medical Board of California
to discipline physicians who “disseminate” information regarding Covid-19 that departs from the
“contemporary scientific consensus.”
Vec and NCLA’s Jenin Younes discuss California’s effort to prevent doctors from providing
their patients with medical information.
See omnystudio.com/listener for privacy information.
3
Jen Psaki’s Deposition and the FBI Paying Twitter
Vec discusses developments in State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al., including Jen Psaki’s deposition and recently disclosed “Twitter Files” information that the FBI paid Twitter nearly $3.5 million to censor social media users.
4
The Student Loan Debt Cancellation Plan Undermines Nonprofits
NCLA has filed a brief opposing the government’s motion to dismiss or transfer in Cato Institute v. U.S. Department of Education. NCLA explains to the U.S. District Court for the District of Kansas why the Cato Institute has standing to challenge the Biden Administration’s student-loan-debt-cancellation plan. The lawsuit argues that the unilateral plan issued by the U.S. Department of Education to cancel student loan debt is supported by no legitimate claim of statutory authority and effectively strips away a significant competitive advantage to recruit and retain talented borrower-employees from nonprofits, thereby frustrating the primary purpose of the pre-existing Public Service Loan Forgiveness (PSLF) program.
See omnystudio.com/listener for privacy information.
1
Fifth Circuit Blocks Federal Contractor Vaccine Mandate
A panel of the U.S. Court of Appeals for the Fifth Circuit upheld a lower court's ruling blocking the Biden administration's Covid-19 vaccine mandate for federal contractors. In a 2-1 decision, the court said the mandate could be interpreted to give President Joe Biden “nearly unlimited authority to introduce requirements into federal contracts.” NCLA represents clients in James Joseph Rodden, et al. v. Dr. Anthony Fauci, et al., a similar class-action lawsuit seeking to overturn the vaccine mandate imposed on federal workers.
Vec discusses the Fifth Circuit’s prohibition of the contractor vaccine mandate in Louisiana, Mississippi, and Indiana.
2
Lawsuit Against CT’s Freedom of Information Commission
This week, Judge John L. Cordani denied the Connecticut Freedom of Information Commission’s (FOIC) motion to strike in the lawsuit, Energy Policy Advocates v. Freedom of Information Commission, et al.
NCLA Senior Litigation Counsel Peggy Little joins the show to discuss the latest updates in the case.
See omnystudio.com/listener for privacy information.
3
NCLA Opposes Govt’s Motion to Dismiss Student Loan Debt Cancellation Lawsuit
Mark discusses the latest motion filed in Cato v. Department of Education, NCLA’s case against Biden’s student-loan-debt-cancellation plan.
4
Holiday Parody Takes Digs at EPA’s Role in Causing Gold King Mine Environmental Disaster
The EPA's actions are inspiration for a parody video of one of the largest environmental catastrophes ever. The project is a collaboration between NCLA and internet celebrity Remy. The video draws on the familiar Christmas carol “Good King Wenceslas,” while detailing EPA’s actions on August 5, 2015, when EPA personnel breached the Gold King Mine near Silverton, Colorado, releasing three million gallons of toxic mine waste and heavy minerals flowed into a tributary of the Animas River, part of the Colorado River watershed.
Vec and Mark discuss the new video by Remy and NCLA.
See omnystudio.com/listener for privacy information.
1
Rhode Island Herring Fishermen Support Supreme Court Review of At-Sea Monitor Rule
Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC, corporations operating in the herring fishery off the coast of New England, have filed an amicus curiae brief in support of Loper Bright Enterprises’ petition for a writ of certiorari. These Rhode Island small businesses urge the Supreme Court to review this case to (1) address the circuit split in how agency actions under the Magnuson-Stevens Act (MSA) are granted Chevron deference, and (2) halt a regulation that allows the National Marine Fisheries Service (NMFS) to unlawfully charge fisherman for a government function Congress does not believe is worth spending Americans’ tax dollars on. NCLA represents amici in Relentless Inc. et al. v. U.S. Dept. of Commerce et al., now pending in the U.S. Court of Appeals for the First Circuit.
Vec discusses the amicus brief in Loper Bright.
2
SCOTUS Grants Cert. In Suit Against IRS’s Interpretation of the Tax CodeMark looks at the new cert. grant in the U.S. Supreme Court in the case of Polselli v. IRS, a case challenging IRS’s unchecked authority to secretly summons any person’s private records based on mere suspicion that the records will help the government collect somebody else’s tax liability.
See omnystudio.com/listener for privacy information.
3
New Developments in NCLA’s Student Loan Debt Relief Lawsuit
Mark interviews NCLA Litigation Counsel Sheng Li on new developments in NCLA’s lawsuit against President Biden’s student-loan-debt-cancellation plan, Cato Institute v. U.S. Department of Education, Miguel Cardona, Richard Cordray and Joseph Biden.
4
NLRB’s New “Joint Employer” Rules
Mark continues with NCLA’s Sheng Li on proposed new “Joint Employer” rules and the possible Brand X deference problem.
See omnystudio.com/listener for privacy information.
1
NCLA Argues Before Sixth Circuit Challenging MSU’s Covid-19 Vaccine Mandate
NCLA appeared before the U.S. Court of Appeals for the Sixth Circuit for a hearing in the lawsuit against Michigan State University’s (MSU) Covid-19 Vaccine Mandate. Jeanna Norris, Kraig Ehm, and D’Ann Rohrer, current or former employees of MSU fired for refusing a Covid-19 vaccine, have challenged the school’s unlawful vaccine mandate, which violates their constitutional right to bodily autonomy, conditions their employment on receiving unnecessary medical treatment, and ignores their statutory right to informed consent.
Vec interviews NCLA Litigation Counsel Jenin Younes regarding the Sixth Circuit argument in Norris, et al. v. Samuel L. Stanley, Jr., in his official capacity as President of Michigan State University, et al.
2
The Depositions of Jen Psaki and Vivek Murthy
Vec and NCLA Litigation Counsel Jenin Younes discuss the depositions of Former WH Press Secretary Jen Psaki and U.S. Surgeon General Vivek Murthy in NCLA’s joint lawsuit with the Missouri and Louisiana attorneys general against the government’s collusion with Big Tech to censor certain Covid-19 viewpoints on social media.
See omnystudio.com/listener for privacy information.
3
Amicus Brief Takes on SEC’s Arbitrary Calculations of Civil Penalties in Enforcement
Cases
The Securities and Exchange Commission (SEC) recently announced record-breaking
enforcement results, boasting a staggering $4.2 billion in civil penalties imposed during just the
past fiscal year—the agency’s “highest on record.” It did so by using putatively “civil” law
enforcement powers to seek and impose severe financial penalties—calculated using arbitrary
and inconsistent multipliers—against American citizens without due process and procedural
protections. NCLA has filed an amicus brief in SEC v. Murphy urging the 9th Cir. to bring
desperately needed consistency, clarity, and discipline to the calculation of civil penalties in
enforcement cases prosecuted by the SEC.
Mark interviews NCLA Senior Litigation Counsel Russ Ryan on NCLA’s amicus brief opposing
SEC’s enforcement penalty multipliers.
4
SEC Fails to Provide Records After Enforcement Staff Illegally Accessed Documents
After submitting a Freedom of Information Act (FOIA) request to the SEC, NCLA has filed a
Complaint alleging that the agency is dragging its feet in providing access to records concerning
“a control deficiency,” where SEC enforcement staff illegally downloaded and gained access to
privileged adjudicative documents. The agency has admitted that this breach occurred in two
major cases challenging the constitutionality of SEC’s administrative proceedings, SEC v.
Cochran and Jarkesy v. SEC.
Mark interviews NCLA Senior Litigation Counsel Peggy Little on the FOIA case against SEC.
See omnystudio.com/listener for privacy information.
1 & 2
Missouri v. Biden: Deposing Dr. Fauci
Vec interviews NCLA Litigation Counsel Jenin Younes on the recent deposition of Dr. Anthony
Fauci in NCLA’s joint lawsuit with the Missouri and Louisiana AGs against the Biden
Administration’s coercion with Big Tech to censor viewpoints on Covid-19 that do not align
with the government’s. Former WH Press Secretary Jen Psaki is also set for an upcoming
deposition in the lawsuit.
See omnystudio.com/listener for privacy information.
The Lawsuits Challenging Biden’s Student Loan Debt Cancellation Plan
Mark and Vec discuss the ongoing student loan dent cancellation cases.
Judge Turns Away Jen Psaki’s Motion to Quash Subpoena
A district court has struck down former White House Secretary Jen Psaki’s motion to quash a subpoena issued to her in the case of State of Missouri ex rel. Schmitt, et al. v. Biden, et al., NCLA’s joint lawsuit with Missouri and Louisiana attorneys-general against the government’s coercion with big tech to censor Americans on social media.
Vec relives the events.
See omnystudio.com/listener for privacy information.
NCLA Files Class-Action Against Massachusetts for Auto-Installing Covid Spyware on 1 Million Phones
The Massachusetts Department of Public Health (DPH) worked with Google to auto-install spyware on the smartphones of more than one million Commonwealth residents, without their knowledge or consent, in a misguided effort to combat Covid-19. Such brazen disregard for civil liberties violates the United States and Massachusetts Constitutions and cannot stand. NCLA has filed a class-action lawsuit, Wright v. Massachusetts Department of Public Health, et al., challenging DPH’s covert installation of a Covid tracing app that tracks and records the movement and personal contacts of Android mobile device users without owners’ permission or awareness.
Mark discusses NCLA’s new case on government tracking.
Amicus Brief Calls on 6th Circuit to Restore Congress’ Power to Set Safety Standards
NCLA has filed an amicus curiae brief in Allstates Refractory Contractors LLC v. Walsh, et al., challenging the constitutionality of the Occupational Safety and Health (OSH) Act of 1970. NCLA’s brief asks the U.S. Court of Appeals for the Sixth Circuit to decide that the OSH Act unlawfully transfers lawmaking power—specifically, the legislative power to promulgate permanent “safety standards”—by authorizing the Secretary of Labor to promulgate, modify, or revoke any occupational safety standard he deems “reasonably necessary or appropriate.”
Mark discusses NCLA’s amicus brief in Allstates Refractory Contractors v. Walsh.
See omnystudio.com/listener for privacy information.
SCOTUS Rejects Challenge to Chevron in VA Benefits Suit, Gorsuch Dissents
NCLA filed a cert. petition in the U.S. Supreme Court on behalf of U.S. Air Force veteran Thomas Buffington against the U.S. Department of Veterans Affairs (VA), seeking to overturn the Federal Circuit’s disregard of the pro-veteran canon of statutory construction in determining his benefits. On November 7th, 2022, the Supreme Court denied NCLA’s cert. petition, with Justice Neil Gorsuch delivering a 16-page dissent.
Mark shares aspects of Justice Gorsuch’s dissent in Buffington v. McDonough.
Senate Control and Its Effect on Administrative Agencies
Vec discusses Senate control and its effect on administrative agencies.
See omnystudio.com/listener for privacy information.
NCLA Asks U.S. Supreme Court to Uphold Federal Jurisdiction over Unconstitutional Agency Proceedings
In Securities and Exchange Commission v. Michelle Cochran, the Court is reviewing a Fifth Circuit en banc ruling that district courts have jurisdiction to hear structural constitutional challenges to SEC’s administrative proceedings—before those proceedings take place. Former Solicitor General Greg Garre of Latham & Watkins, advocating for Ms. Cochran, asked the Justices to uphold district court jurisdiction, an important bulwark for individual liberty and a vital check on administrative power Mark asks NCLA Senior Litigation Counsel Peggy Little about the Cochran oral argument at SCOTUS.
SCOTUS Oral Argument in Axon v. FTC
Vec and Mark discuss the Supreme Court oral arguments in Axon v. FTC, a similar case to SEC v. Cochran challenging FTC’s administrative proceedings.
See omnystudio.com/listener for privacy information.
Standing Dispute in Nebraska v. Biden
Mark discusses standing dispute in Nebraska v. Biden student-loan-debt-cancellation case.
“How to Rein in Elon Musk”
A recent article written by Luke Goldstein for the Washington Monthly argues that Elon Musk, now the owner of Twitter, has “too much power.”
Vec worries about the administrative mindset in the article “How to Rein in Elon Musk.”
See omnystudio.com/listener for privacy information.
CA Doctors Sue Gov. Newsom and Medical Board Over New Law Censoring Medical
Advice
A new California law signed by Governor Gavin Newsom empowers the Medical Board of California to discipline physicians who “disseminate” information regarding Covid-19 that departs from the “contemporary scientific consensus.” NCLA has filed a complaint and motion for a preliminary injunction in Høeg, et al. v. Newsom, et al., asking the U.S. District Court for the Eastern District of California to prevent AB 2098 from going into effect. Mark discusses the new NCLA case against the Covid speech ban for doctors.
FTC Invents Regulatory Power It Lacks
The Federal Trade Commission has a well-documented history of asserting regulatory powers beyond anything granted to it by Congress. FTC recently announced a proposed consent agreement with Drizly, the alcoholic beverage delivery company, and its CEO, James Cory Rellas, for alleged consumer data breaches. Vec interviews NCLA Litigation Counsel Kara Rollins about the consent agreement.
See omnystudio.com/listener for privacy information.
The Buckeye Institute’s D.C. Restaurant Shutdown Case
Vec interviews Robert Alt, The Buckeye Institute’s president and chief executive officer, on Flannery v. D.C. Department of Health, a Buckeye Institute lawsuit challenging D.C.’s unconstitutional emergency acts and orders, which were used to shut down a neighborhood bar and grill.
Six States Sue Biden Administration Over Mass Student Loan Cancellation
NCLA has filed an amicus brief in the lawsuit brought by six States—Nebraska, Missouri, Arkansas, Iowa, Kansas, and South Carolina—to block the Biden Administration’s unlawful student loan debt cancellation plan. The U.S. Court of Appeals for the Eighth Circuit issued a stay of the executive action while it considers the States’ emergency request. NCLA urges the Eighth Circuit to halt the debt cancellation plan while it considers the States’ arguments on appeal because the plan is so obviously unconstitutional.
Mark discusses Nebraska v. Biden.
See omnystudio.com/listener for privacy information.
Ninth Circuit Ruling Creates Circuit Split on Fourth Amendment Issue
In the case of Verdun v. City of San Diego, the U.S. Court of Appeals for the Ninth Circuit ruled that the City of San Diego did not violate the Fourth Amendment by chalking tires without a warrant to enforce parking time limits. The decision creates a split with the Sixth Circuit on the issue.
Pennsylvania's Speech Code for Lawyers
NCLA has filed an amicus brief in Greenberg v. Lehocky opposing the attempt by Pennsylvania officials to revive a rule that would introduce overly vague language governing discrimination- based misconduct in the legal profession. Pennsylvania’s Rule 8.4(g) exposes attorneys to discipline—including sanctions that deprive lawyers of the ability to earn a livelihood—if, while in the practice of law, they knowingly communicate in a manner “constituting harassment or discrimination.”
Mark describes NCLA’s amicus brief in Greenberg v. Lehocky.
See omnystudio.com/listener for privacy information.
New Activity in NCLA’s Gov’t Censorship Case
Vec discusses recent developments in NCLA’s case, State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al., the lawsuit that blows the lid off a sprawling federal censorship regime.
Status Updates on Recent Student Loan Cancellation Lawsuits
Mark and Vec give status updates on lawsuits brought by organizations against the Biden Administration’s student loan cancellation plan.
See omnystudio.com/listener for privacy information.
The Dormant Commerce Clause
In 2018, California approved Proposition 12, what supporters describe as the country’s strongest law to protect farm animals. The U.S. Supreme Court has heard oral arguments in National Pork Producers Council v. Ross challenging the constitutionality of the law. The challengers, two groups that represent farmers and pork producers, contend the law “will transform the pork industry nationwide,” while California and its supporters insist that the impact will be more limited. And both sides of the dispute contend that a ruling for the other side will have legal implications far beyond animal welfare.
Vec discusses the Supreme Court’s argument in National Pork Producers Council v. Ross and the Dormant Commerce Clause.
Consumers’ Research v. CPSC
NCLA has filed an amicus brief in Consumers’ Research, et al. v. CPSC, a case before the U.S. Court of Appeals for the Fifth Circuit. Consumers’ Research successfully challenged the structure of the Consumer Product Safety Commission (CPSC) after a federal district court held that the agency violated Article II of the Constitution and the separation of powers because the Commission exercises substantial executive power but is improperly insulated from presidential removal. CPSC has appealed that decision.
Mark and Vec discuss NCLA’s amicus brief in Consumers’ Research v. CPSC.
See omnystudio.com/listener for privacy information.
Amended Complaint Filed in NCLA Gov’t Censorship Lawsuit
NCLA, the Attorney General of Missouri, and the Attorney General of Louisiana, have filed a second amended complaint in the lawsuit that exposed scores of federal officials across at least eleven federal agencies secretly communicating with social-media platforms to censor and suppress private speech the government disfavors. 47 new defendants, including officials from the White House, Centers for Disease Control, the FBI and 11 other federal agencies have been added to a lawsuit. Plaintiffs are also seeking to depose many of these top-ranking officials.
Vec discusses Missouri v. Biden and the recently filed amended complaint with NCLA Litigation Counsel Jenin Younes.
NCLA Amicus Brief Encourages Fifth Cir. to Reject Judicial Deference to Sentencing Commission
NCLA has filed an amicus brief in United States v. Vargas, urging the en banc U.S. Court of Appeals for the Fifth Circuit to decide that Stinson deference should not be applied when it results in a more severe criminal sentence. NCLA argues that existing Fifth Circuit precedent, which the panel was bound to apply in its vacated decision, follows flawed reasoning and causes courts to defer reflexively to United States Sentencing Commission commentary, even when Sentencing Guidelines are unambiguous.
Vec discusses Stinson deference and NCLA’s amicus brief in U.S. v. Vargas with NCLA Litigation Counsel Kara Rollins.
See omnystudio.com/listener for privacy information.
Is the End of University Affirmative Action Near?
The U.S. Supreme Court is set to hear two legal challenges to the affirmative action programs used by admissions offices at the University of North Carolina and Harvard University. The petitioner in these cases, Students for Fair Admissions, claims that affirmative action hurts Asian-American students, and is asking SCOTUS to prevent colleges and universities from considering students’ race in the admissions process.
Vec previews the affirmative action university cases before the Supreme Court.
Axon v. FTC and SEC v. Cochran at the Supreme Court
Vec previews Axon v. FTC and NCLA’s Cochran case before the Supreme Court.
See omnystudio.com/listener for privacy information.
NCLA Suit Uncovers Army of Federal Bureaucrats Coercing Big Tech to Censor Speech
NCLA’s lawsuit, State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al., reveals scores of federal officials across at least eleven federal agencies have secretly communicated with social-media platforms to censor and suppress private speech federal officials disfavor.
Vec interviews NCLA clients Mark Changizi, a cognitive theoretical scientist, and Jill Hines, Co-Director of Health Freedom Louisiana, on government-induced social media censorship.
See omnystudio.com/listener for privacy information.
Supreme Court Starts New Term
The U.S. Supreme Court began its Fall 2022 term on Monday, October 3rd, 2022. NCLA has several cases pending before SCOTUS in cases involving Chevron deference, ATF’s bump stock ban, and SEC enforcement proceedings.
Vec discusses the start of the new SCOTUS term.
Ranchers Are Taking USDA to High Court Over FACA
NCLA has filed a petition for a writ of certiorari with the U.S. Supreme Court in R-CALF USA v. USDA, asserting that USDA’s sub-agency, APHIS, failed to comply with statutory
requirements in the Federal Advisory Committee Act (FACA) when it established two advisory committees. The Tenth Circuit let APHIS off the hook based on an unduly confined interpretation of “established” that would gut FACA. U.S. courts of appeals have issued sharply conflicting decisions on the issues presented in this case—warranting Supreme Court review to resolve the split in authority.
Mark explains NCLA’s cert. petition in R-CALF v. USDA.
See omnystudio.com/listener for privacy information.
Fifth Cir. Upholds Texas Law Barring Social Media Companies from Content Moderation
In a recent decision in NetChoice v. Paxton, the Fifth Circuit Court of Appeals upheld a Texas law that would bar social media companies from engaging in many forms of content moderation.
Vec interviews NCLA Paralegal Roey Goldstein on the Fifth Circuit’s decision.
Is the Pandemic Over? President Biden Says So
Vec talks with NCLA Litigation Counsel Sheng Li about President Biden’s recent declaration that “the pandemic is over” and what this statement means for lawsuits against unconstitutional Covid-19 vaccine mandates.
See omnystudio.com/listener for privacy information.
Title IX Changes Threaten Due Process
The U.S. Department of Education’s proposed changes to Title IX of the Education Amendments of 1972 would severely curtail due process protections in Title IX proceedings as well as violate First Amendment rights to free speech, expression, association, and practice of religion. Comments filed by NCLA argue that assault and sexual harassment/discrimination adjudications should be eliminated entirely from campuses and moved into the criminal justice or civil justice system. If, however, they are going to be dealt with on campuses, then such adjudications must protect the due process rights of both the accuser and the accused.
Vec discusses NCLA’s comments on the Dept. of Education’s proposed Title IX regulation with NCLA Litigation Counsel Jenin Younes.
Compensation for Property Owners Harmed by Eviction Moratorium
NCLA filed an amicus brief in Darby Development Company, Inc., et al. v. United States in the U.S. Court of Appeals for the Federal Circuit. In this case, dozens of rental property owners assert that the Centers for Disease Control and Prevention (CDC) Eviction Moratorium effected either a compensable taking or an illegal exaction under the Fifth Amendment.
Vec explains Darby v. U.S.
See omnystudio.com/listener for privacy information.
NCLA Brief Supports Effort to Prevent Independent FTC from Exercising Executive
Power
NCLA has filed an amicus brief in the case FTC v. Walmart before the U.S. District Court for the Northern District of Illinois, arguing that FTC lacks constitutional authority to bring a lawsuit for monetary damages and injunctive relief against Walmart Inc.
Mark and John discuss Humphrey’s Executor and FTC v. Walmart.
Yeshiva University’s Religious Freedom Lawsuit
NCLA filed an amicus brief in support of Yeshiva University’s Supreme Court application seeking an emergency stay pending appeal of a court order to “immediately” approve an official “Pride Alliance” student club. NCLA argued that the constitutional harms stemming from the injunction were substantial and could continue possibly for years while the case reaches absolute finality. The denial of one’s First Amendment rights, even for short periods, constitutes irreparable harm and necessitates correction by the courts.
See omnystudio.com/listener for privacy information.
First Cir. Oral Argument in Suit Challenging Government Required At-Sea Monitors
NCLA appeared before the U.S. Court of Appeals for the First Circuit on September 13, 2022, to present oral argument on behalf of Relentless Inc. in the case of Relentless Inc., et al. v. U.S. Dept. of Commerce, et al., challenging NOAA’s unlawful at-sea monitor mandate for Atlantic herring fishing boats.
Vec discusses NCLA’s oral argument in Relentless.
Oral Argument Before Full Fifth Cir. In Bump-Stock Ban Case
NCLA Senior Litigation Counsel Rich Samp appeared before all judges of the U.S. Court of
Appeals for the Fifth Circuit on September 13, 2022, to present oral argument on behalf of
Michael Cargill in the case of Michael Cargill v. Merrick Garland, et al. NCLA is challenging
the ATF’s unconstitutional bump stock ban and urging the Fifth Cir. to reject deference to the government.
Mark discusses NCLA’s oral argument in Cargill.
See omnystudio.com/listener for privacy information.
Judge Orders Fauci and WH Press Secretary to Release Records Related to Big Tech
Censorship
Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana ordered Dr. Anthony Fauci and White House Press Secretary Karine Jean-Pierre to respond to document requests by NCLA in conjunction with the Missouri and Louisiana attorneys general on behalf of plaintiffs in State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al.
Vec discusses discovery developments in Missouri v. Biden.
Humphrey’s Executor Issue in FTC v. Walmart
The Federal Trade Commission (FTC) has sued Walmart for allowing its money transfer services to be used by fraudsters, who fleeced consumers out of hundreds of millions of dollars.
Mark and Vec explain the Humphrey’s Executor issue in FTC v. Walmart.
See omnystudio.com/listener for privacy information.
NCLA’s SCOTUS Reply Brief Refutes SEC’s Scattershot Arguments
A reply brief submitted to the U.S. Supreme Court in SEC v. Cochran explains why Texas
accountant Michelle Cochran has the right to have her original lawsuit against the Securities and Exchange Commission (SEC) heard in federal district court. SEC has tried to block this essential avenue for vindicating constitutional safeguards, insisting that Congress insulated the agency’s administrative proceedings from any meaningful judicial scrutiny until after SEC has issued a final order in the proceeding.
Mark discusses NCLA’s reply brief in Cochran at the Supreme Court.
NCLA Asks Full Fifth Circuit to Scrap Fed Employee Vaccine Mandate
NCLA and its clients from the class-action lawsuit, Rodden v. Fauci, have filed an amicus curiae brief in Feds for Medical Freedom v. Biden, a similar case seeking to overturn the vaccine mandate imposed on federal workers. NCLA and the Rodden plaintiffs urge the en banc Court of Appeals for the Fifth Circuit to affirm the U.S. District Court for the Southern District of Texas’s original injunction against President Biden’s unprecedented vaccine mandate.
John details NCLA’s amicus brief in Feds for Medical Freedom v. Biden.
See omnystudio.com/listener for privacy information.
3
NCLA’s Fifth Circuit Oral Argument in Case Challenging Nasdaq Board Diversity Rules
NCLA’s Peggy Little gives highlights of her Fifth Circuit oral argument in the lawsuit, National
Center for Public Policy Research v. SEC. NCLA client, National Center for Public Policy
Research, argues that SEC has no power to approve Nasdaq’s new Board Diversity Rules
because the rules have nothing to do with fraud or honest markets.
Can Magistrate Judges Sign Search Warrants?
Vec and Mark debate whether magistrate judges can sign search warrants.
See omnystudio.com/listener for privacy information.
1
CO Landowner’s Lawsuit Against EPA Advances After Judge Denies MTD; Suit Uncovers
Army of Govt. Officials Coercing Big Tech to Censor Speech
Judge Armando Bonilla of the U.S. Court of Federal Claims issued a decision from the bench in
favor of NCLA’s client and denying a motion to dismiss in Todd Hennis v. The United States of
America. Mr. Hennis filed a lawsuit against the United States for the physical taking of his
property without just compensation in violation of the Fifth Amendment.
On August 5, 2015, EPA destroyed the portal to the Gold King Mine, located in Silverton,
Colorado. Upon doing so, the agency released a toxic sludge of over 3,000,000 gallons of acid
mine drainage and 880,000 pounds of heavy metals into the Animas River watershed. EPA
eventually mobilized supplies and equipment onto Mr. Hennis’s downstream property to address
the immediate after-effects of its actions. The U.S. Government has never paid Mr. Hennis any
compensation for either flooding or appropriating his property for public use. It has instead
squatted on his lands for seven years and counting.
NCLA Senior Litigation Counsel Harriet Hageman recounts her win in Hennis in the Court of
Federal Claims.
2
Suit Uncovers Army of Govt. Officials Coercing Big Tech to Censor Speech
A joint statement on discovery disputes in the lawsuit, State of Missouri ex rel. Schmitt, et al. v.
Joseph R. Biden, Jr., et al., has revealed that scores of federal officials across at least eleven
federal agencies secretly communicated with social-media platforms to censor and suppress
private speech federal officials disfavor.
Vec and NCLA Litigation Counsel Jenin Younes discuss the bombshell discovery documents.
See omnystudio.com/listener for privacy information.
3
Biden’s Student Loan Forgiveness Is Unlawful
Mark and Vec discuss President Biden’s unlawful student loan forgiveness plan.
4
You Can’t Kill the Constitution
Two Ivy League law professors think we should kill the Constitution. Hard pass.
See omnystudio.com/listener for privacy information.
1
In NCLA Win, First Circuit Rules Taxpayers Can Sue IRS; DC Circuit Decision Tees Up
Chevron
A three-judge panel of the U.S. Court of Appeals for the First Circuit has unanimously ruled in
Harper v. Rettig that taxpayer James Harper can take the Internal Revenue Service (IRS) to
federal court for gathering private financial information about his use of virtual currency from
third-party exchanges without a lawful subpoena.
NCLA’s First Circuit victory in Harper means people can sue the IRS.
2
DC Circuit Decision Tees Up Chevron Deference
A split D.C. Circuit has ruled in Loper Bright Enterprises, Inc v. Gina Raimondo that the
National Marine Fisheries Service can interpret federal law to require industry-funded
monitoring of Atlantic herring fishermen.
The court’s decision in Loper Bright tees up Chevron deference.
See omnystudio.com/listener for privacy information.
1,2,3, &4
If MIT Won't Defend Science, Who Will?!
Mark chats with Professor Dorian Abbot of the University of Chicago. The Massachusetts
Institute of Technology invited Prof. Abbot to give a prestigious public lecture in the fall of
2021. But then the university withdrew its invitation after some students and faculty complained
about a Newsweek op-ed co-authored by Abbot. In it, he argued that many aspects of affirmative
action—and especially diversity, equity, and inclusion policies—violate “the ethical and legal
principle of equal treatment” and treat “people as members of a group rather than as individuals,
repeating the mistake that made possible the atrocities of the 20th century.”
See omnystudio.com/listener for privacy information.
1,2,3,& 4
If MIT Won't Defend Science, Who Will?!
Mark chats with Professor Dorian Abbot of the University of Chicago. The Massachusetts
Institute of Technology invited Prof. Abbot to give a prestigious public lecture in the fall of
2021. But then the university withdrew its invitation after some students and faculty complained
about a Newsweek op-ed co-authored by Abbot. In it, he argued that many aspects of affirmative
action—and especially diversity, equity, and inclusion policies—violate “the ethical and legal
principle of equal treatment” and treat “people as members of a group rather than as individuals,
repeating the mistake that made possible the atrocities of the 20th century.”
See omnystudio.com/listener for privacy information.
3
Raid on Mar-a-Lago
Mark and Vec discuss Mar-a-Lago.
4
The EEOC and Religious Discrimination With Sharon Gustafson
Vec interviews Sharon Gustafson, immediate past General Counsel of the U.S. Equal
Employment Opportunity Commission (EEOC), on the EEOC and religious discrimination.
See omnystudio.com/listener for privacy information.
1
Supreme Court’s Response to COVID-19 Actions
Mark interviews former United States Assistant Attorney General and current Partner at Jones
Day, Eric Dreiband, on the Supreme Court’s response to COVID-19 actions.
2
The Effects of SEC’s ESG Initiative
Vec discusses the SEC’s Environmental, Social, & Governance (ESG) initiatives’ effects even
before implementation.
See omnystudio.com/listener for privacy information.
- Jenin explains new joint suit with MO and LA AG's over social media censorship
3
NCLA Joins Suit Challenging Gov’t-Directed Social Media Censorship
NCLA has joined the lawsuit, State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et
al., representing renowned epidemiologists and co-authors of the Great Barrington Declaration,
Drs. Jayanta Bhattacharya and Martin Kulldorff, as well as Dr. Aaron Kheriaty and Jill Hines.
Social media platforms, acting at the federal government’s behest, repeatedly censored NCLA’s
clients for articulating views on those platforms in opposition to government-approved views on
Covid-19 restrictions.
NCLA Litigation Counselor Jenin Younes explains the new joint lawsuit.
- Jenin and Mark reflect on past year of vax mandate cases
4
Reflecting on One Year of Vaccine Mandate Cases
Jenin and Mark reflect on the past year of Covid-19 vaccine mandate cases.
See omnystudio.com/listener for privacy information.
- Mark and Kara discuss Hennis case over EPA land grab
1
EPA’s “Orange River” Disaster
Todd Hennis spent decades building his nest egg as owner of the Gold King Mine near Silverton,
Colorado. But seven years ago, the U.S Environmental Protection Agency destroyed the entrance
to the mine causing a breach and releasing a toxic sludge of over three million gallons of acid
mine drainage and 880,000 pounds of heavy metals. Referred to as the “orange (or yellow) river
seen around the world”, the rush of contamination snaked down the Animus River watershed.
NCLA represents Mr. Hennis in his lawsuit, Hennis v. U.S., seeking compensation for the years
EPA has been squatting on his property without his permission or constitutional authority to do
so without just compensation. Mark and NCLA Litigation Counsel Kara Rollins discuss Hennis
over EPA’s land grab.
- Mark and Russ discuss latest NCLA amicus, involving ALJ tenure protection at FDIC
2
NCLA Calls for Full Sixth Circuit to Reconsider FDIC ALJ Protections
NCLA has filed an amicus brief in a case addressing whether certain Federal Deposit Insurance
Corporation officers, including the agency’s ALJs, are protected by multiple layers of tenure
protection in violation of the “Take Care” clause of the Constitution. NCLA asks the Sixth
Circuit Court of Appeals to grant the petition for rehearing in Calcutt v. FDIC.
Mark and NCLA Senior Litigation Counsel or Russ Ryan discuss the latest NCLA amicus.
See omnystudio.com/listener for privacy information.
3
New Evidence Revealed in Social Media and Vaccine Cases
Mark and Vec discuss new evidence in social media and vaccine cases.
On March 3, the U.S. Surgeon General demanded that the tech companies turn over information
about individuals who spread “misinformation” about Covid-19, a clear intimidation tactic that
HHS has labeled a “Request for Information” (RFI). NCLA previously filed a Complaint in the
lawsuit, Changizi, et al. v. HHS, et al., in the U.S. District Court for the Southern District of
Ohio. The lawsuit alleges that Surgeon General Vivek Murthy and HHS Secretary Xavier
Becerra, whom NCLA has sued in their official capacities, do not have the statutory authority to
issue this RFI.
4
Chevron Deference and the Supreme Court
Mark and Vec speculate on Chevron deference and the Supreme Court. NCLA has two cases
challenging Chevron deference pending in the U.S. Supreme Court on a petition for a writ of
certiorari—Aposhian v. Garland and Buffington v. McDonough.
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1
NCLA Asks Fifth Circuit to Toss ATF’s Bump Stock Ban
NCLA filed its appellant brief in the Fifth Circuit in Cargill v. Garland, which could determine
who has the constitutional authority to change the criminal law if changes are warranted. The
appeals court vacated the three-judge panel’s opinion upholding ATF’s legal interpretation and
granted en banc review. Mark discusses NCLA’s en banc brief in Cargill.
2
Administrative Law, Fireworks, and Mount Rushmore
Vec discusses administrative law, fireworks, and Mount Rushmore.
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1
NCLA Celebrates Preliminary Win in Fulbright Scholarship Discrimination Case Vec announces NCLA’s preliminary win in the Fulbright scholarship discrimination lawsuit, Lujan v. Department of Education. NCLA filed the lawsuit, as well as a preliminary injunction on behalf of Ms. Ahmad, challenging the U.S. Department of Education’s 1998 rule and its decision to reject her 2021 application on the basis of her Arabic-speaking heritage. The Department of Education has agreed not to apply the rule to her and other similarly situated applicants this year.
2 SEC Statements Indicate Problems with Gag Orders Vec describes problems with SEC’s gag rule based on SEC statements at a sentencing hearing in Tampa, FL, this week in SEC v. Spartan Securities Group, LTD., et al.
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3 & 4 The False Academic Attacks on Legitimacy of Justices Mark and Vec discuss false academic attacks on the legitimacy of the Supreme Court justices’ appointments.
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NCLA Files Brief in License Plate Data Collection Case
NCLA has filed a reply brief in Raul Mas Canosa v. City of Coral Gables, Florida, et al., the lawsuit challenging the city’s use of Automatic License Plate Readers (ALPRs) to collect and store geographic location data of drivers. The city’s warrantless surveillance infringes the privacy rights of residents like Raul Mas Canosa, who is suing over the use of ALPRs.
Ill-Considered Decision Revives Judicial Misconduct Complaint
The Committee on Judicial Conduct and Disability of the Judicial Conference of the United States revived a judicial misconduct complaint against 11th U.S. Circuit Court of Appeals chief judge, William Pryor, and U.S. District Judge Corey Maze, over their hiring of a clerk accused of making discriminatory statements. Vec discusses the charges against Judges Pryor and Maze.
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Changes in Title IX Regulations and Threats to Due Process
Vec and Mark discuss changes in Title IX regulations and the accompanying threats to due process.
The ‘Special Needs’ Exception and Warrantless Searches
Mark describes problems with the ‘special needs’ exception to the Fourth Amendment and NCLA’s amicus in support of cert. at the Supreme Court in Torcivia v. Suffolk Co., NY.
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MSU’s Employee Covid-19 Vaccine Mandate
NCLA recently filed an opening brief in the Sixth Circuit Court of Appeals in Norris v. MSU. Jeanna Norris, Kraig Ehm, and D’Ann Rohrer, current or former employees of Michigan State University fired for refusing a COVID-19 vaccine, have challenged MSU’s unlawful vaccine mandate, which violates their constitutional right to bodily autonomy, conditions their employment on receiving unnecessary medical treatment, and ignores their statutory right to informed consent.
NCLA Senior Litigation Counsel Greg Dolin joins Vec to discuss the appellate brief.
Does the Supreme Court Need Fixing?
Does the Supreme Court need fixing? Vec and Greg discuss.
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Gorsuch v. Kagan in West Virginia v. EPA
In a 6-3 decision, SCOTUS rejected the Environmental Protection Agency’s sweeping claim of regulatory authority under the Clean Air Act. The Court stated that EPA could not satisfy the “major questions” doctrine nor “point to ‘clear congressional authorization’” to devise carbon emissions limits. Chief Justice Roberts delivered the opinion of the Court, Justice Gorsuch filed a concurring opinion, and Justice Kagan a dissenting opinion.
Vec discusses Justice Kagan’s dissent in West Virginia v. EPA with NCLA Litigation Counsel Casey Norman.
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SCOTUS Limits EPA’s Regulatory Authority Under Clean Air Act
Mark discusses the Supreme Court’s decision in West Virginia v. EPA with NCLA Senior Litigation Counsel Rich Samp.
In a blockbuster 6-3 decision, the Supreme Court rejected the Environmental Protection Agency’s sweeping claim of regulatory authority under the Clean Air Act. The Court stated that EPA could not satisfy the “major questions” doctrine nor “point to ‘clear congressional authorization’” to devise carbon emissions limits.
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NCLA’s Opening SCOTUS Brief in SEC v. Cochran
NCLA Senior Litigation Counsel Peggy Little discusses NCLA’s opening Supreme Court brief in SEC v. Cochran. Peggy Little is NCLA’s lead counsel on the case and successfully argued it before the en banc Fifth Circuit.
Jacobson and MSU’s Vaccine Mandate Lawsuit
Jenin and Mark discuss Jacobson precedent and NCLA’s opening brief in Norris v. MSU in the Sixth Circuit.
Jeanna Norris, Kraig Ehm, and D’Ann Rohrer, all current or former employees of Michigan State University (MSU), are challengingthe school’s COVID-19 vaccine mandate, which violates their constitutional rights to bodily autonomy and unlawfully conditions their employment on receiving unnecessary medical treatment.
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3
NCLA Seeks Preliminary Injunction Against Dept. of Education
NCLA has filed a Motion for Preliminary Injunction in a lawsuit challenging the U.S. Department of Education’s (ED) application process for the Fulbright-Hays Fellowship, which unlawfully discriminates based on applicants’ nation of origin. Mark and Vec discuss the Preliminary Injunction in Lujan v. Dept. of Education.
4
NCLA’s Ginsburg-Scalia Fellowship Honors Justices’ Legacy of Civility
NCLA has recently launched the Ginsburg-Scalia Fellowship, an annual summer program for law students working in Washington D.C. honoring the legendary friendship of former Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia. Mark talks about the Ginsburg-Scalia Fellowship and the relationship between current SCOTUS Justices Clarence Thomas and Sonia Sotomayor.
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1 & 2
Dissecting Carson v. Makin and New York State Rifle & Pistol Assoc. v Bruen
Carson v. Makin:
In a 6-to-3 vote, the Supreme Court has ruled that Maine violated the Free Exercise Clause by restricting its program of tuition assistance to private schools that are “nonsectarian.” Vec discusses “Free Exercise” in the Supreme Court case of Carson v. Makin.
New York State Rifle & Pistol Assoc. v Bruen:
The Supreme Court has struck down a New York gun law that places restrictions on carrying a concealed gun outside the home. Mark dissects the 2nd Amendment Supreme Court case New York State Rifle & Pistol Association v. Bruen.
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3
SCOTUS Showdown: Justice Gorsuch v. Justice Barrett
Vec gives a blow-by-blow account of the textualists doing battle.
4
The Assassination Attempt of Justice Kavanaugh
Mark and Vec share their thoughts on the attempted killing of Justice Kavanaugh.
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1
Due Process Victory! AZ Court of Appeals Sides with NCLA
A three-judge panel of the Arizona Court of Appeals ordered the removal of NCLA client Phillip B.’s name from the Arizona Department of Child Safety (DCS) Central Registry of substantiated findings of child abuse. DCS’s then-Director had ‘deleted’ factual findings and credibility determinations made by an independent administrative law judge (ALJ) who took live testimony in the case. DCS thereby unjustly destroyed Phillip B.’s reputation and career. In a decision that vindicates Phillip B., the Arizona Court of Appeals held: “Because [the DCS] Director’s Decision here does not meet the regulatory requirements for a substantiated finding, there is no legal authority for the Director to enter Phillip B.’s name into the Registry.” Mark announces the victory in the AZ Court of Appeals.
2
In NCLA Amicus Win, SCOTUS Rules Against HHS
A unanimous Supreme Court has ruled that the Department of Health and Human Services (HHS) violated the 2003 Medicare Act by lowering drug reimbursement rates for specific hospitals. NCLA filed an amicus brief in support of petitioners in American Hospital Association v. Becerra. NCLA agreed with the petitioners’ argument that HHS’s authority under the Medicare statute to “adjust[ ]” average sales price when calculating reimbursement rates does not include wholesale authority to substitute acquisition costs for average sales price. Mark discusses the amicus victory.
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1
NCLA Wins Appeal in Cornell University Title IX Case
The U.S. Court of Appeals for the Second Circuitrecently vacated the dismissal of the Title IX and defamation claims in Dr. Mukund Vengalattore v. Cornell University and the U.S. Department of Education. The Court held that university discrimination against faculty on the basis of sex is subject to suit under Title IX. The majority and concurring opinions expressed shock at the lack of due process and general treatment of Dr. Mukund Vengalattore by Cornell University. Judge José Cabranes, in his concurrence, noted that Cornell’s actions (if proved at trial) represent “deeply troubling aspects of contemporary university procedures to adjudicate complaints under Title IX” and “signal a retreat from the foundational principle of due process.”
2
NCLA’s SCOTUS Amicus Brief On Nondelegation Doctrine
NCLA has filed an amicus brief with the U.S. Supreme Court in the cases consolidated with Haaland, et al. v. Brackeen, et al. NCLA is urging the Supreme Court to declare that the Indian Child Welfare Act (ICWA) divests Congress’s lawmaking function to an entity outside of the federal government (i.e., Indian tribes), which Article I, Sec. 1 of the U.S. Constitution forbids.
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3
The Winner of the King George III Prize Is …
Mark and Clegg Ivey, NCLA’s Director of Engagement, discuss who won this year’s King George III Prize for worst bureaucrat.
4
What Egbert v. Boule Means for Bivens Cases
Vec explains the SCOTUS ruling in Egbert v. Boule and what it means for Bivens cases.
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3
Tenth Circuit Rules Against R-CALF on FACA
The United States Circuit Court of Appeals for the 10th District has ruled against R-CALF USA and ranchers who had challenged USDA’s use of two private groups to help formalize the government’s proposed rule requiring electronic ear tags. Mark discusses the Tenth Circuit ruling in R-CALF USA v. USDA.
4
Is the Government Directing Social Media Companies to Censor Speech?
NCLA argues in the lawsuit, Changizi, et al. v. HHS, et al., that the U.S. Surgeon General and the Department of Health and Human Services (HHS) have directed social media platforms, including Twitter, to censor alleged “misinformation” about Covid-19. The speech ban has included information the government later conceded was true but that conflicted with the government’s messaging on Covid-19 at the time. Vec discusses the U.S. District Court for the Southern District of Ohio’s recent determination in the case.
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1
The Federal Employee Vaccine Mandate
NCLA has filed an amicus curiae brief on behalf of clients it represents in the class-action lawsuit James Joseph Rodden, et al. v. Dr. Anthony Fauci, et al., who have acquired natural immunity to Covid-19. NCLA’s brief in Feds for Medical Freedom v. Biden supports a petition for Fifth Circuit en banc review after a split Fifth Circuit panel vacated a nationwide injunction issued by U.S. District Judge Jeffrey Brown against the Federal Employee Vaccine Mandate. Vec discusses the amicus brief in Feds for Medical Freedom.
2
Jarkesy v. SEC Opinion Sparks Public Overreaction
The U.S. Court of Appeals for the Fifth Circuit recently handed down a major decision vacating SEC’s decision in Jarkesy v. SEC and finding that the agency’s in-house adjudication of Mr. Jarkesy violated his constitutional rights. Mark discusses overreaction by some to the Jarkesy opinion.
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NCLA Celebrates Third Circuit Victory in Free Speech Lawsuit Against NLRB
The U.S. Court of Appeals for the Third Circuit recently sided with NCLA in its ruling to vacate the National Labor Relations Board’s (NLRB) flawed decision to charge FDLRST Media, LLC with committing an “unfair labor practice.” The Court said, “[t]he record contains no sign—indeed, no inkling—of any circumstance at FDRLST Media that leads us to conclude that a reasonable employee would interpret Domenech’s tweet as a veiled threat.” Mark and Vec celebrate the major First Amendment win and the merits of the FDRLST concurrence by Judge Paul Matey.
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SCOTUS Rejects FEC Argument Against Sen. Cruz’s Standing to Sue
In a 6-3 ruling, the Supreme Court has invalidated a provision of federal campaign finance law limiting the amount of money a candidate can be repaid for personal loans made to their campaign. NCLA filed an amicus brief in support of Senator Ted Cruz’s challenge to Section 304 of the Bipartisan Campaign Reform Act of 2002, which unconstitutionally burdens core political speech. Senator Cruz also raised challenges to the Federal Election Commission’s (FEC) implementing regulation. In the amicus brief, NCLA argued, and the Court agreed, that the FEC’s proposed heightened standing standard, if adopted, would severely restrict the ability to challenge unlawful government action. Mark interviews NCLA Litigation Counsel Sheng Li about our amicus victory in FEC v. Cruz.
Court Denies Covid Eviction Moratorium Taking Claim
Thirty-eight landlords and rental property owners filed suit in the U.S. Court of Federal Claims, asserting that the nationwide residential eviction moratorium effected either a compensable taking or an illegal exaction under the Fifth Amendment. The plaintiffs argued in Darby Development Company v. U.S. that the government forced them to continue housing non-rent-paying tenants rather than replace them with rent-paying tenants and subjected them to significant fines and imprisonment if they pursued otherwise lawful evictions. The Court granted the defendant’s motion to dismiss. Vec bemoans the Court’s decision.
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NCLA Celebrates Fifth Circuit Decision in Jarkesy v. SEC
The U.S. Court of Appeals for the Fifth Circuit handed down a major decision vacating SEC’s decision in Jarkesy v. SEC and finding that the agency’s in-house adjudication of Mr. Jarkesy violated his constitutional rights. NCLA filed an amicus brief in support of his appeal of an SEC Final Order that imposed sanctions for alleged violations of securities laws. Vec and Mark lay out the three major holdings from Fifth Circuit’s opinion and celebrate the merits.
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Supreme Court Grants Cert in SEC v. Cochran
The U.S. Supreme Court has granted certiorari in Securities and Exchange Commission v. Michelle Cochran. The Court will review a Fifth Circuit en banc decision that ruled Texas accountant Michelle Cochran has the right to challenge the constitutionality of her Administrative Law Judge’s removal protections in federal court before undergoing an administrative adjudication. Mark interviews lead counsel Peggy Little about the Supreme Court cert grant.
What’s Next?
Vec and Mark discuss additional aspects of the Cochran case and what to expect.
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3
NCLA’s Four Cert Petitions Before the Supreme Court
Mark explains the four cert petitions NCLA clients have before the U.S. Supreme Court.
4
The Threats Facing Judges
After a Supreme Court draft opinion in Dobbs v. Jackson Women’s Health was leaked, activists published the addresses of some of the justices’ homes and organized protests outside of them. Some also posted threats of violence against them on social media platforms. Vec discusses threats to U.S. federal judges for doing their jobs.
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1
NCLA Files Lawsuit Against Discriminatory Fulbright Rule
A complaint filed by NCLA argues the U.S. Department of Education’s application process for the Fulbright-Hays Fellowship unlawfully discriminates based on applicants’ nation of origin. NCLA represents the plaintiffs in Samar Ahmad and Edgar Ulloa Lujan v. U.S. Department of Education, et al., which asks the U.S. District Court for the Western District of Texas to declare this process unconstitutional and not authorized by the Fulbright-Hays Act of 1961.
The Fulbright-Hays Doctoral Dissertation Research Abroad Fellowship was established to support and promote U.S. students to conduct doctoral research in foreign countries using a foreign language. The Department of Education evaluates applicants on a 105-point scale, with language proficiency counting for 15 points. Starting in 1998, the Department began to use the language-proficiency criterion to disadvantage U.S. students whom the Department deemed to be “non-native-born” by assigning them 0 out of 15 points for language proficiency if they acquired the relevant foreign language through their national heritage. Mark and Vec discuss NCLA’s new case.
2
Government Tracking of Charter Boats Case Garners Strong Amicus Support
The states of Louisiana, Alabama, Mississippi, and South Carolina, and two public interest organizations are among the amici curiae who have filed briefs in support of the arguments presented by NCLA in the lawsuit challenging government agencies—Commerce, NOAA, and NMFS—forcing charter boats that take customers fishing and sightseeing in the Gulf of Mexico to purchase a vessel monitoring system (VMS) and submit to 24-7 warrantless surveillance. Vec discusses the amicus briefs in support of Mexican Gulf v. Commerce in the Fifth Circuit.
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Federal Agencies and Regulatory Overreach
Mark and Vec discuss the tendency of agencies to address problems they were not set up to tackle.
The Supreme Court’s Unprecedented Leak
A Supreme Court draft opinion written by Justice Samuel Alito that was leaked and published on Monday by Politico indicated the court might be preparing to overturn Roe v. Wade, the 1973 precedent that established a constitutional right to an abortion. Mark and Vec discuss the unprecedented SCOTUS draft leak, which Chief Justice John Roberts described as “absolutely appalling.”
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NCLA Files Appeal in Gulf of Mexico Charter Boat Class-Action Lawsuit
NCLA has filed its opening brief in its appeal to the U.S. Court of Appeals for the Fifth Circuit on behalf of more than 1,300 federally permitted charter boat owners in the class-action lawsuit, Mexican Gulf Fishing Company, et al. v. Dept. of Commerce, et al. The appeal challenges a Final Rule issued by the National Marine Fisheries Service (NMFS) pursuant to the Magnuson-Stevens Act. It requires 24-hour GPS tracking of recreational charter boat fishing vessels in the Gulf of Mexico. NCLA argues that the district court erred in holding that the Fourth Amendment allows an agency to monitor charter boat operators without a warrant or any suspicion of wrongdoing. Vec describes the appeal in Mexican Gulf.
New Texas Case May Challenge Humphrey’s Executor Ruling
Humphrey's Executor v. United States was a case decided on May 27, 1935, by the United States Supreme Court. It involved the power of the president to remove a member of the Federal Trade Commission for reasons other than the ones explicitly stated in the Federal Trade Commission Act. The Supreme Court ruled that the president could not remove a commissioner for a cause other than those listed in the act, which were “inefficiency, neglect of duty, or malfeasance in office.” Mark discusses Biden v. Texas, a case that may challenge Humphrey’s Executor.
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What is “Cassell” Deference?
Ever heard of “Cassell” deference? Us neither. But it’s a problem. Mark and Vec explain.
NCLA’s King George III Prize Enters ‘Elitist Eight’ Round
The KGIII prize is NCLA’s campaign to call attention to the most egregious violations of our basic civil liberties by highlighting the people and institutions responsible for those abuses. Starting with 32 nominees, we’ve now shaved the bracket down to the final eight nominees. Mark and Clegg Ivey, NCLA’s Director of Engagement, banter over the KGIII cutdown to the Elitist Eight.
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NCLA Files for Preliminary Injunction in Twitter Censorship Case
NCLA has filed a motion for a preliminary injunction in Changizi v. HHS,a lawsuit challenging Government directed censorship of Twitter users who spread so-called “misinformation” about Covid-19. Absent a preliminary injunction, Plaintiffs will suffer irreparable harm in the form of continued violations of their First Amendment and statutory rights, as well as the prospect of their private information being handed over to the Government in violation of their Fourth Amendment rights to remain free from unreasonable searches and seizures. Vec discusses Changizi v. HHS and the preliminary injunction motion.
Elon Musk Takes Over Twitter
Twitter’s board has announced it has agreed to sell the social media company to Tesla CEO Elon Musk in a deal valued at $44 billion. Musk has pledged to make Twitter a bastion of free speech. Mark and Vec discuss the implications of Musk’s Twitter takeover.
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SCOTUS Upholds Government’s Power to Deny Puerto Ricans Federal Benefits
The Supreme Court on Thursday rejected a bid to extend a federal program offering benefits to residents of Puerto Rico, finding that Congress had the authority to deny that assistance. Vec discusses administrative programs and American territories in U.S. v. Madero.
Professor Philip Hamburger Joins the Show to Discuss Purchasing Submission
Mark interviews Professor Hamburger, founder of NCLA, on his new book, "Purchasing Submission: Conditions, Power, and Freedom."
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Vega v. Tekoh and Miranda Rights
Terence Tekoh worked as a patient transporter in a hospital in Los Angeles. After a patient accused him of sexual assault, hospital staff reported the allegation to the Los Angeles Sheriff’s Department. Deputy Carlos Vega went to the hospital to question Tekoh and take his statement. Although the parties described vastly different accounts of the nature of the interaction between Tekoh and Vega, it is undisputed that Vega did not advise Tekoh of his Miranda rights prior to questioning him or taking his statement.
Vec discusses Miranda and stare decisis in Vega v. Tekoh, a case pending before the Supreme Court.
NCLA Files Amicus Brief in Ohio Supreme Court Deference Lawsuit
NCLA has filed an amicus brief in TWISM Enterprises, LLC v. State Board of Registration for Professional Engineers and Surveyors, urging the Supreme Court of Ohio to declare agency deference unconstitutional.
NCLA argues that the Hamilton County Court of Appeals erred by deferring to the Ohio Board of Registration for Professional Engineers and Surveyors’ “reasonable interpretation” of what the court characterized as “ambiguous statutes and administrative rules.” Agency deference violates the Ohio and federal constitutions by requiring judges to abandon their duty of independent judgment. Mark discusses NCLA’s amicus brief before the Ohio Supreme Court on state chevron.
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Elon Musk’s Twitter Takeover Bid
Elon Musk has announced an offer to take Twitter Inc. private in a deal valued at $43 billion deal in a filing with the U.S. Securities and Exchange Commission on Thursday, after turning down the chance to take a board seat at the company. Musk first disclosed a stake of about 9% on April 4, at the time making him the largest individual investor. Mark discusses the implications of Musk’s Twitter takeover bid.
Taking Issue With Calls for Justice Thomas’s Recusal
Vec takes issue with the calls for Justice Clarence Thomas’s recusal in the wake of recently leaked texts of Ginni Thomas gathered by the House January 6 special committee.
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Fifth Circuit Reverses Injunction in Feds for Medical Freedom Lawsuit
On Thursday, the Fifth Circuit Court of Appeals reversed a federal district court’s nationwide injunction barring the implementation of Executive Order 14043, which mandates COVID-19 vaccination for all executive branch employees, subject to medical and religious exceptions. Vec explains the Court’s decision in Feds for Medical Freedom v. Biden.
NCLA Files Opening Brief in Polyweave v. U.S. Department of Transportation
NCLA has filed its opening brief in Polyweave Packaging v. U.S. Dept. of Transportation, in the U.S. Court of Appeals for the Sixth Circuit, contending that the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration exceeded its authority under a statute that allows imposition of a civil penalty in response to “knowingly violating” the Hazardous Material Regulations. Mark covers the new Sixth Circuit petition.
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Justice Roberts Joins Dissent Criticizing SCOTUS Shadow Docket Orders
This week, the Supreme Court issued an “emergency” ruling in Louisiana v. American Rivers. Chief Justice John Roberts joined the dissent criticizing the Court’s use of the “shadow docket.” Vec discusses the dissent.
Academy Award Best Picture Film Depicts Regulations on Fishing Industry
Oscar best picture winner for original film, “CODA,” highlights the devastating effects of government regulations on the fishing industry. NCLA represents fishermen and charter boat captains in lawsuits challenging NOAA’s unlawful regulations.
Vec discusses the Academy Awards and CODA.
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Bombshell in SEC Lawsuit
Mark reveals a bombshell in SEC v. Michelle Cochran. The agency has disclosed that its enforcement staff accessed documents in at least two adjudicatory matters currently in litigation in federal court, including Cochran. NCLA represents Michelle Cochran in a lawsuit challenging the constitutionality of SEC’s in-house Administrative Law Judges, who enjoy multiple layers of protection from removal by President Biden.
SEC released a statement this week admitting that “administrative support personnel from Enforcement, who were responsible for maintaining Enforcement’s case files, accessed [restricted] Adjudication memoranda via the Office of the Secretary’s databases.” This self-described “control deficiency” is actually an outrageous breach of ethics—and possibly law—by SEC that illustrates why the Constitution forbids housing prosecutorial functions and adjudicatory functions in a single agency.
NCLA’s Amicus Brief in ATF Bump Stock Cert Petition
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has promulgated a Final Rule that classifies bump stocks as “machineguns” without Congress’s delegation of authority to define or redefine that term. Gun Owners of America and several other organizations and individuals filed a petition for a writ of certiorari, asking the Supreme Court to settle widespread disagreement among the lower courts over (1) whether the definition of “machinegun” found in the relevant statute is clear and unambiguous, and if bump stocks meet that definition, and (2) whether courts should apply Chevron deference to an agency interpretation of federal law when the federal government declines to invoke it.
Mark discusses NCLA’s amicus in support of Gun Owners of America v. Garland.
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Supreme Court Urged to Review Cochran
NCLA filed an early response to the U.S. Securities and Exchange Commission’s (SEC) March 11 petition for a writ of certiorari in SEC v. Michelle Cochran. NCLA argues that the U.S. Supreme Court should reject the government’s request to hold the Cochran case pending a decision in Axon Enterprise, Inc. v. FTC; instead, it should grant plenary review in Cochran and consolidate the case with Axon for argument next fall.
Mark reveals the latest machinations of the government before the Supreme Court in Cochran.
NCLA Presents Oral Argument in the Tenth Circuit in FACA Lawsuit
NCLA appeared before a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit in R-CALF USA, et al. v. U.S. Department of Agriculture, et al. NCLA represents R-CALF USA and four plaintiff ranchers on their claims that USDA established and utilized the “Cattle Traceability Working Group” and “Producer Traceability Council” (two groups created to assist in the transition to RFID ear tags) in violation of the Federal Advisory Committee Act (FACA). Mark and Vec discuss the argument before the Tenth Circuit.
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Federal Government Forces Social Media Companies to Censor Americans
Mark Changizi, Daniel Kotzin, and Michael Senger each had or have Twitter accounts with tens of thousands of followers or more. Their Twitter platforms provided them with a social network, and an outlet to express their views, to hear the views of others, and to engage with detractors and fans alike. Outrageously, the U.S. Surgeon General and the Department of Health and Human Services (HHS) have directed social media platforms, including Twitter, to censor alleged “misinformation” about Covid-19. The speech ban has included information the government later conceded was true but that conflicted with the government’s messaging on Covid-19 at the time. On March 3, the Surgeon General demanded that the tech companies turn over information about individuals who spread such “misinformation,” a clear intimidation tactic. In response to government pressure, Twitter has permanently banned Mr. Senger, and temporarily suspended Mr. Changizi and Mr. Kotzin.
NCLA has filed a Complaint and a Motion for a Preliminary Injunction in the lawsuit, Changizi, et al. v. HHS, et al., in the U.S. District Court for the Southern District of Ohio alleging that Surgeon General Vivek Murthy and HHS Secretary Xavier Becerra, whom NCLA has sued in their official capacities, do not have the statutory authority to issue the request. Mark and Vec discuss this government intimidation of tech companies.
NCLA Files Preliminary Injunction in Mexican Gulf Charter Boat Lawsuit
The U.S. District Court for the Eastern District of Louisiana has denied the Motion for Summary Judgment filed by over 1,300 federally permitted charter boat owners in the class-action lawsuit, Mexican Gulf Fishing Company, et al. v. NOAA, et al., and granted the government’s motion to allow a Final Rule governing the tracking of boats to go into effect.
NCLA recently filed a Motion for an Injunction Pending Appeal in the class-action lawsuit, to immediately stop the ongoing, unlawful surveillance of charter boats in the Gulf of Mexico. The charter boats will continue to be monitored, their whereabouts relayed at all times to the government without a warrant, unless an injunction is granted.
See omnystudio.com/listener for privacy information.
Update on NCLA’s King George III Bracket Competition
NCLA’s Director of Engagement Clegg Ivey joins Mark to discuss the King George III Prize bracket contest.
The King George III Prize is a campaign calling out the most egregious violations of our basic civil liberties by highlighting the officials and institutions responsible for those abuses. Check out the brackets and cast your vote for the winner at https://nclalegal.org/king-george-iii-prize/!
Fourth Circuit Split in U.S. v. Moses
John discusses dueling opinions rejecting en banc review in U.S. v. Moses. The panel’s decision in this case that this Circuit should defer reflexively to the commentary of the Sentencing Commission—even absent ambiguity—endangers individual liberty and distorts the independent judicial office enshrined in Article III of the Constitution.
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Judge Ketanji Brown Jackson Faces SCOTUS Confirmation Hearings
President Biden nominated Judge Ketanji Brown Jackson as Associate Justice of the U.S. Supreme Court in the last week of February. She could be the first black woman confirmed in a higher court. John discusses last week’s SCOTUS confirmation hearings for Judge Jackson.
NCLA Files Cert. Petition in Romeril v. SEC
NCLA has filed a petition for a writ of certiorari with the U.S. Supreme Court in Romeril v. SEC, seeking a review of the constitutionality of SEC’s “gag orders,” which the Commission requires in virtually all settled cases. Mark interviews NCLA Senior Litigation Counsel Peggy Little on the SCOTUS cert. petition.
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NCLA Launches Second Annual King George III Bracket Competition
NCLA’s Director of Engagement, Clegg Ivey, joins Mark to discuss the King George III Prize bracket contest.
The King George III Prize is a campaign calling out the most egregious violations of our basic civil liberties by highlighting the people and institutions responsible for those abuses. Join us as we thumb our noses at these runaway regulators, officious bureaucrats, and god-complex governors. Watch gleefully as we force them to battle it out head-to-head in tournament-style matchups.
In the spirit of the madness of March and King George III, we’ve arranged our nominees into tournament-style brackets. Check out the brackets and cast your vote for the winner at https://nclalegal.org/king-george-iii-prize/!
One Cheer for FTC Notice and Comment Rulemaking
John gives one cheer for notice and comment rulemaking at the Federal Trade Commission.
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Positive Developments in Lawsuit Backing RI Oral Surgeon
The Rhode Island Department of Health (RIDOH) has dismissed a Compliance Order that shut down Dr. Stephen Skoly’s practice last October for not complying with Rhode Island’s vaccine mandate for healthcare workers. NCLA’s lawsuit on behalf of Dr. Skoly pressured the state to allow him to get back to serving his patients.
Dr. Skoly, one of Rhode Island’s few oral and maxillofacial surgeons—whose services are critical to the community—has natural immunity to Covid-19 and also has unique medical circumstances that put his health at risk if he were to get the Covid-19 vaccine.
In refusing to recognize Dr. Skoly’s naturally acquired immunity to Covid-19 and denying his request for a medical exemption from the vaccine mandate, RIDOH had harmed hundreds of Rhode Island patients, including its most vulnerable (residents of the state’s psychiatric hospital and prison), who, in Dr. Skoly’s absence, have suffered due to the absence of necessary surgeries. John discusses the latest positive developments in the case.
Third Circuit’s Mootness Problem in Johnson v. Murphy
NCLA’s lawsuit on behalf of New Jersey landlords challenging Governor Murphy’s Executive Order No. 128 was dismissed as moot by the U.S. Court of Appeals for the Third Circuit, which reasoned that the order had expired and was unlikely to be repeated. Mark talks about the mootness problem and Third Circuit’s decision in Johnson v. Murphy.
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SEC Feuds With Tesla CEO Elon Musk Over Tweets
In August of 2018, SEC sued Tesla CEO Elon Musk after he tweeted that he had “funding secured” to potentially take Tesla private at $420 per share. The settlement that followed included a $20 million fine for Tesla and a $20 million personal fine for Musk—both of which were to be distributed to shareholders for a total $40 million payout. Additionally, Musk was hit with a “consent order,” which requires a Tesla lawyer to review his tweets before they're posted to Twitter. On Tuesday, Musk asked a federal judge to terminate his 2018 settlement with the SEC. John dissects the SEC’s ongoing feud with Musk over his Tweets.
Vague CT Rule Chills Attorneys’ Speech
Mark discusses NCLA’s lawsuit, Cerame v. Bowler, brought on behalf of two Connecticut-licensed attorneys whose speech is being chilled.
Connecticut has adopted an amendment to its Rules of Professional conduct for Connecticut-licensed lawyers that includes unconstitutional and impermissibly vague language governing speech by lawyers. The provision, Rule 8.4(7), applies broadly, permitting sanctions even against those who have not knowingly violated the Rule, and supplies only vague definitions of actionable speech on the basis of any one of 15 categories—among them race, sex, religion, disability, sexual orientation, and gender identity.
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SCOTUS Decision on Armed Career Criminal Act
The Supreme Court ruled on Monday that William Dale Wooden’s ten burglary offenses arising from a single criminal episode did not occur on different “occasions” and thus count as only one prior conviction under the Armed Career Criminal Act (ACCA). John examines Wooden v. United States and what “occasion” means for ACCA.
Rhode Island Arbitrarily Shuts Down Medical Facility After Ignoring Natural Immunity
Mark discusses NCLA’s most recent Lunch & Law speaker series: “When Bureaucrats Won't Let Doctors Practice Medicine.”
NCLA has filed a lawsuit on behalf of Dr. Skoly, a highly experience oral maxillofacial surgeon, challenging Rhode Island’s irrational policies that violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Dr. Skoly made the decision not to receive a COVID-19 vaccination due to the uncertainty regarding the risks involved because of a medical condition. He retains antibodies after recovering from a previous COVID-19 infection.
At the Lunch & Law, NCLA’s Brian Rosner and Jenin Younes sat down with Dr. Skoly to discuss his case against the state for arbitrarily shutting down his practice.
You can watch the event at NCLA’s YouTube page: https://www.youtube.com/watch?v=gNHt9iTrzTk
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New Eastman Emails Reveal January 6th Exchange
Mark discusses newly revealed correspondence between John Eastman and Greg Jacob over January 6th on January 6th.
NCLA Files Brief in Support of Feds For Medical Freedom Lawsuit
Plaintiffs from NCLA’s class-action lawsuit, James Joseph Rodden, et al. v. Dr. Anthony Fauci, et al., have submitted an amicus brief in a similar case seeking to overturn President Biden’s Federal Employee Vaccine Mandate. Vec explains the brief filed in Feds for Medical Freedom, et al. v. Biden, et al.
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NOAA’s Surveillance Rule for Gulf Vessels Goes Into Effect
The U.S. District Court for the Eastern District of Louisiana has denied the Motion for Summary Judgment filed by over 1,300 federally permitted charter boat owners in the class-action lawsuit, Mexican Gulf Fishing Company, et al. v. NOAA, et al., and granted the Government’s motion to allow a Final Rule governing the tracking of boats to go into effect. Charter boats operating in the Gulf of Mexico must now comply with an unlawful requirement to pay for and “permanently affix” a Vessel Monitoring System (VMS) that tracks, relays, and stores information for government use. John discusses the Court’s summary judgment decision.
NCLA Backs SCOTUS Case Seeking To Resolve Eleventh Circuit Split on Rule 60(b)
Vec discusses NCLA’s amicus brief in Kemp v. United States, a case before the Supreme Court challenging the U.S. Court of Appeals for the Eleventh Circuit’s interpretation of rules allowing courts to correct judgments for legal error.
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NCLA Supports Cert Petition in Title IX Case
As part of its efforts to enforce Title IX, the U.S. Department of Education has routinely pressured schools to deny due process to the accused in sexual-misconduct investigations. NCLA filed an amicus brief in support of Jane Doe’s petition for a writ of certiorari before the U.S. Supreme Court in her case against the California State University system and various Title IX administrators. Mark discusses Title IX and NCLA’s amicus brief in Jane Doe v. Timothy White, et al.
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Stinson Deference, Fourth Circuit Confusion, and NCLA’s Amicus Brief in Moses
NCLA recently filed an amicus brief in United States v. Lenair Moses, urging the U.S. Court of Appeals for the Fourth Circuit to rehear the case en banc and address whether Stinson deference can increase criminal sentences. NCLA argues that the Fourth Circuit panel erred in upholding Lenair Moses’s enhanced 10-year sentence under flawed reasoning that the Fourth Circuit should defer reflexively to the commentary of the United States Sentencing Commission, even when the applicable Sentencing Guideline is unambiguous. This panel of the Fourth Circuit’s decision to cling to Stinson deference endangers individual liberty, distorts the independent judiciary, and violates due process by institutionalizing judicial bias.
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What’s Next in Norris v. MSU?
On Tuesday, Judge Paul Maloney of the U.S. District Court for the Western District of Michigan granted Michigan State University’s (MSU) Motion to Dismiss the class-action lawsuit, Norris, et al. v. Samuel L. Stanley, Jr., et al., ruling that the school acted rationally in enforcing its vaccination policy. Vec dissects the judge’s dismissal and talks about the next steps in the case.
MSU’s vaccine mandate requires all faculty, staff, and students to be fully vaccinated or obtain an approved exemption. Naturally acquired immunity is explicitly excluded as the basis for an exemption from the blanket rule, even though natural immunity provides equivalent or greater protection against re-infection and transmission to others than immunity generated by Covid-19 vaccines. Perversely, while MSU rejects natural immunity, it accepts non-FDA approved, inferior foreign vaccines such as Sinovac and Sinopharm, which start out with approximately 50% efficacy rates and wane relatively quickly.
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NCLA Files Brief in Support of Feds For Medical Freedom Lawsuit
Plaintiffs from NCLA’s class-action lawsuit, James Joseph Rodden, et al. v. Dr. Anthony Fauci, et al., have submitted an amicus brief in a similar case seeking to overturn President Biden’s Federal Employee Vaccine Mandate. Vec explains the brief filed in Feds for Medical Freedom, et al. v. Biden, et al.
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Judge James Ho Stands With Ilya Shapiro
Federal Judge James Ho delivered a speech on Tuesday defending and declaring he stands with legal scholar Ilya Shapiro, who was suspended from Georgetown Law after publishing several tweets criticizing President Biden’s promise to nominate a Black woman to fill Justice Breyer’s Supreme Court seat. Vec discusses Judge Ho’s speech and the limits of judicial public expression.
Government’s Decision To Ignore Natural Immunity Is Bureaucratic, Not Scientific
Mark interviews NCLA Litigation Counsel Jenin Younes about Dr. Paul Offit’s disclosure on the CDC’s “bureaucratic” refusal to recognize natural immunity. Offit, Director of the Vaccine Education Center and an attending physician in the Division of Infectious Diseases at Children's Hospital of Philadelphia, described on The ZDoggMD Show how, in a closed-door meeting, he and another person advised in favor of accepting natural immunity, while two others voted against it.
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NYC Rent Stabilization Challenge at Second Circuit w/ Andy Pincus
Two lawsuits challenging the constitutionality of the Housing Stability and Tenant Protection Act of 2019 went to oral arguments on Wednesday in the Second Circuit. Mark talks with Andrew Pincus, a partner at Mayer Brown and the lead attorney for landlord groups CHIP and RSA, to discuss the lawsuits against New York City’s rent stabilization law.
Administrative Law Changes at SCOTUS Are Not “Revolutionary”
Vec discusses a recent article published in The Atlantic, “The Conservative Justices Don’t Seem Too Worried About the Court’s Legitimacy.” The article’s author, Mary Ziegler, argues that fears about the Supreme Court’s public reputation used to have a moderating influence—but that may not be the case any longer. Vec disputes claims from the article that certain changes to administrative law or a reduction in the administrative state would be ‘revolutionary.’
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Why Georgetown Shouldn’t Have Put Ilya Shapiro on Leave
Ilya Shapiro, the newly slated executive director of the Georgetown Center for the Constitution, has been on administrative leave since last week after publishing several tweets criticizing President Biden’s promise to nominate a Black woman to fill Justice Breyer’s Supreme Court seat. John explains why Georgetown put Ilya Shapiro on leave but shouldn’t have.
Mark and Vec also discuss Philip Hamburger’s recent op-ed for The Wall Street Journal on keeping intolerant lawyers off the bench. Professor Hamburger discusses, in the context of the Ilya Shapiro news, what should be done about law school deans and others in legal institutions who censor, cancel, and otherwise blacklist others for their opinion.
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Justice Sotomayor’s Comments on Growing Partisanship Among Judges
Vec comments on U.S. Supreme Court Justice Sonia Sotomayor joining the “judges are not political” chorus. Justice Sotomayor said Wednesday that intensifying partisanship around the Supreme Court confirmation process has pushed the Court’s independence to the brink of crisis.
“As norms of the nomination process are broken, as more senators, congressional representatives, governors, mayors, local politicians, and the media question the legitimacy of the court, the threat is greater and unprecedented than any time in our history,” she said.
NCLA Backs Rhode Island Oral Surgeon After State Shuts Down Practice
Mark describes NCLA’s new lawsuit brought on behalf of Dr. Stephen Skoly, a Rhode Island oral surgeon whose practice was shut down due to arbitrary and irrational government vaccine mandates. Dr. Skoly’s practice was taking care of over 800 patients per month, plus state psychiatric hospital patients and state prison inmates.
By excluding health care providers with natural immunity from practicing, the Rhode Island created an artificial hospital staffing shortage. To cope with that problem of its own making, the Rhode Island Department of Health has allowed health care providers with active Covid infections to treat patients instead. But Dr. Skoly, who has natural immunity and a valid medical reason for not wanting the COVID-19 vaccine, is not able to perform much-needed care.
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Marco Island, FL Captures ALPR Driver Data Sans Warrants
Mark announces Schemel, et al. v. City of Marco Island, Florida, et al., a new lawsuit challenging the warrantless searches associated with the automated license plate recognition (ALPR) systems installed at each of the island’s bridges.
Full Fifth Circuit Should Review ATF’s Bump Stock Ban to Resolve Circuit Split
NCLA recently filed a petition for rehearing en banc in the lawsuit, Michael Cargill v. Merrick Garland, et al. NCLA is asking the full bench of the U.S. Court of Appeals for the Fifth Circuit to review two questions: (1) whether a statute’s definition of “machineguns” unambiguously includes bump stocks, and (2) if it is ambiguous, does either the rule of lenity or Chevron deference apply to the 2018 reinterpretation of the statute adopted by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
The previous Fifth Circuit panel decision in this lawsuit is at odds with the decision of every appeals court that has ruled on the issue, creating a conflict among the circuits.
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NOAA’s Fishy Surveillance and Monitoring: An Update on NCLA’s Lawsuits Against the Agency
This week saw activity in two of NCLA’s lawsuits against NOAA.
In Relentless Inc., et al. v. U.S. Dept. of Commerce, et al., NCLA filed an opening brief in the U.S. Court of Appeals for the First Circuit. The lawsuit argues the lower court erred in holding that the Magnuson-Stevens Act allows the National Oceanic and Atmospheric Administration (NOAA), as well as Department of Commerce (DOC), and the National Marine Fisheries Service (NMFS) to create an at-Sea Monitoring Program and force regulated fishermen to pay for it. Dissatisfied with the amount of monitoring they could perform with the funds from Congressional appropriations, these agencies formulated and implemented the Industry-Funded Monitoring Omnibus Amendment to “increase monitoring” and “assess the amount and type of catch and more precisely monitor annual catch limits.” But the new rule ignores Congressional limits on burdening fishers in the New England fisheries.
Also this week, charter boat captains across the Gulf of Mexico asked the U.S. District Court for the Eastern District of Louisiana for a stay of an unlawful GPS-tracking requirement for their vessels. The rule requires all for-hire charter boat captains off the Gulf of Mexico to install vessel monitoring systems, a kind of GPS tracking device, on their boats to supply 24/7 location information to the U.S. Government. The requirement is set to take effect on March 1, 2022. Less than 24 hours after NCLA filed the motion, Judge Morgan ordered the government to respond and granted our request to have the response shortened.
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The High Cost of Disparaging Natural Immunity to Covid
Mark touts Marty Makary’s recent Wall Street Journal article, “The High Cost of Disparaging Natural Immunity to Covid,” which details the negative impacts of the CDC ignoring natural immunity.
Federal Judge’s Ruling Halts Federal Employee Vaccine Mandate
Judge Jeffrey Vincent Brown of the U.S. District Court of the Southern District of Texas recently blocked the Biden Administration’s COVID-19 vaccine mandate for federal workers. Judge Brown ruled in favor of the plaintiffs in Feds for Medical Freedom v. Joseph R. Biden, Jr., pausing implementation of the mandate.
NCLA filed a similar class-action lawsuit in November 2021 against the U.S. government, as well as Dr. Anthony Fauci and other members of the Safer Federal Workforce Task Force, the group designated to act as the intermediate enforcer of the executive order mandating that all federal employees get vaccinated. NCLA’s lawsuit, James Joseph Rodden v. Dr. Anthony Fauci, is also before Judge Brown, who cited Rodden in his recent decision.
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Justice Stephen Breyer Plans to Retire; A Preview of Possible Nominees
Mark and Vec discuss Justice Stephen Breyer’s announcement that he will retire at the end of the Supreme Court’s 2021-22 term. They also preview possible Supreme Court nominees to replace him. President Biden has confirmed that the nominee will be the first Black woman to serve on the high court.
NCLA, a nonpartisan, nonprofit civil rights group devoted to protecting constitutional freedoms from violations by the Administrative State strongly believes we need federal judges who are willing to protect the civil liberties of individual Americans from unlawful administrative power. If courts will not check administrative abuses when they occur and force federal agencies to stick to constitutional pathways, then the government will run amok and civil liberties will be lost.
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SCOTUS Oral Arguments in FEC v. Cruz
This week, the Supreme Court heard oral arguments in Senator Ted Cruz’s challenge to limits on the amount of money candidates can raise from donors to pay off their personal debt after an election.
FEC is urging the Supreme Court to adopt a new, heightened standard for establishing that an injury is “fairly traceable” to complained-of conduct, a showing required of all plaintiffs in order to establish their standing to sue. Adopting FEC’s theory of standing would significantly restrict judicial challenges to all kinds of unlawful federal government action. For that reason, NCLA filed an amicus brief with the Supreme Court in FEC v. Ted Cruz for Senate, et al., asking the Court to carefully consider the broader negative impact of FEC’s proposed standard.
Dissecting the Administrative Law Approach of the Biden Administration’s First Year
Mark dissects the administrative law approach of year one of the Biden administration. As President Biden closes out the first year of his term, he has shown no restraint in issuing executive orders and in growing the Administrative State. NCLA has been raising the alarm on the unprecedented amount of unlawful administrative power that the White House is generating. Executive fiat has become the lawmaking method of choice, thereby trampling Americans’ civil liberties and usurping legislative power in violation of the U.S. Constitution.
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Breaking Down Biden v. Missouri and NFIB v. OSHA
Mark and Vec discuss the Supreme Court’s decisions in two COVID-19 vaccine mandate lawsuits, Biden v. Missouri and NFIB v. OSHA.
NCLA commends the ruling in NFIB v. OSHA to invalidate the private employer vaccine mandate that applies to 84 million Americans. On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued the Emergency Temporary Standard (ETS), which required private companies with 100 or more employees either to implement a mandatory COVID-19 vaccination policy or force employees to present a weekly negative COVID-19 test.
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Professor Hamburger on Spending Power and Its Excesses
Mark discusses Professor Hamburger’s latest guest post for the Volokh Conspiracy, “Before Judging Vaccines, the Court Should Judge Itself.”
In the post, Professor Hamburger explains that the Constitution leaves the federal government much power to spend through its enumerated powers, but does not give Congress a general spending power. Such a move was considered by the Constitutional Convention but clearly abandoned. Nonetheless, the Supreme Court says that Congress has a general spending power, thereby giving Congress a power to spend that exceeds even its inflated power to regulate.
Anonymity for Plaintiffs Suing Their Regulators
Mark examines the issue of anonymity for plaintiffs suing their regulators.
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The Vaccine Mandate Lawsuits Before SCOTUS w/ Dan McLaughlin
Vec interviews National Review’s Dan McLaughlin (@baseballcrank on Twitter) to discuss the vaccine mandate lawsuits before the Supreme Court.
NCLA commends the U.S. Supreme Court for ruling on Thursday to invalidate the private employer vaccine mandate that applies to 84 million Americans. On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued the Emergency Temporary Standard (ETS), which required private companies with 100 or more employees either to implement a mandatory COVID-19 vaccination policy or force employees to present a weekly negative COVID-19 test.
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NCLA Asks SCOTUS to Reconsider Chevron Deference in Veterans Benefits Suit
Thomas Buffington is a U.S. Air Force veteran who served his country honorably for over nine years. Now after incurring a disability in the line of duty, he is having to fight the very agency that should be helping him. NCLA filed a petition for writ of certiorari in the U.S. Supreme Court on behalf of Mr. Buffington against the U.S Department of Veteran Affairs (VA), seeking to overturn the Federal Circuit’s disregard of the pro-veteran canon of statutory construction in determining his benefits.
After being honorably discharged in May 2000, Mr. Buffington sought disability compensation for tinnitus. The VA concluded that his disability was service-connected and began paying him disability compensation effective May 31, 2000. Mr. Buffington was later recalled to active duty for several months in the Air National Guard, during which time VA discontinued paying his disability compensation. Four years after completing his tour of duty, Mr. Buffington, in 2009, formally requested that VA reinstate his disability benefits, including paying the benefits he had earned in the periods following completion of his active duty. VA refused to award him the benefits due, citing its “forfeiture rule”—under which veterans lose past-due disability benefits if they wait more than one year before submitting a claim to resume benefits. Mr. Buffington argues that VA’s adoption of a one-year forfeiture rule lacks any basis in the underlying statute.
Defending the Contracts Clause
Just before New Years, NCLA filed a Supreme Court amicus brief in Apartment Association of Los Angeles County, Inc. v. City of Los Angeles, et al. Following the outbreak of COVID-19 in early 2020, the City of Los Angeles imposed an eviction moratorium and gave tenants up to a year after the emergency ends to repay their back rent interest-free.
NCLA finds disturbing the recent trend, epitomized by this case, of lower courts deferring to states and cities in their flimsy justifications for substantially impairing landlord-tenant contractual obligations. The Supreme Court’s immediate intervention is required to rescue the Contracts Clause of the U.S. Constitution from oblivion and ensure that it serves its original purpose during the COVID-19 pandemic response and hereafter.
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NCLA Files Federal Contractor Vaccine Mandate Lawsuit
The Biden Administration has enacted an unlawful executive order to compel millions of Americans who work for government contractors (even if they do not perform work on government contracts) to take a COVID-19 vaccine. NCLA filed a class-action lawsuit against President Biden, the Safer Federal Workforce Task Force, the Office of Management and Budget, and other government agencies and officials, in the U.S. District Court for the Western District of Michigan. The Plaintiffs in this lawsuit seek judicial relief from the unlawful and unconstitutional Federal Contractor Vaccine Mandate. Two subclasses are being sought within the class-action suit, one for naturally immune contractor employees and one for remote workers.
Is SCOTUS Taking On Tougher Cases?
Vec touts a recent article explaining how SCOTUS is taking on tougher cases recently.
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DOJ to Allow Prisoners Moved to Home Confinement for Covid to Stay
NCLA commends Attorney General Merrick Garland and the Department of Justice (DOJ) for reversing course on the idea of automatically returning prisoners put on home confinement to prison once the pandemic ends. Under an opinion from the Office of Legal Counsel (OLC) released yesterday, prisoners released to home confinement pursuant to 2020’s Coronavirus Aid, Relief, and Economic Security (CARES) Act will not automatically return to prison post-pandemic and will be eligible to remain at home instead.
NCLA represents Dianthe Martinez-Brooks, a 52-year-old nonviolent first-time offender who has been serving her federal prison term on home confinement during Covid. In May 2021, NCLA and Ms. Martinez-Brooks filed suit against DOJ, seeking declaratory relief against an earlier OLC opinion, which interpreted federal law to strip the Bureau of Prisons of its statutorily granted discretion to determine if and when individuals released under the CARES Act to home confinement could be returned to prison.
Happy New Year! The Supreme Court’s Famous Eggnog Story
To bring in the New Year, Vec tells the story of the Supreme Court’s famous eggnog recipe.
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NCLA’s Recent Lawsuits Against Nasdaq’s Board Diversity Rules and Fairfax Co. Schools’ Quarantine Policy
Mark and Vec discuss two of NCLA’s most recent lawsuits brought against the SEC and Fairfax County Public Schools.
In the first, NCLA argues that SEC lacks the authority to approve Nasdaq Stock Market LLC’s new Board Diversity Rules concerning the race, gender, and sexual preference of members of corporate boards of directors. On August 6, 2021, SEC narrowly approved a Rule requiring disclosure of the aggregate race, gender, and sexual preference of Nasdaq-listed companies, with two of five Commissioners dissenting. The Board Diversity Rule subjects Nasdaq-listed companies to the following requirements: (a) they must disclose information about their board’s self-identified gender, race, and sexual preference; and (b) either (i) meet minimum quotas of individuals of a certain gender, racial, and sexual preference, or (ii) publicly explain why the board does not meet such quotas. SEC approved Nasdaq’s proposed quota and disclosure requirements even though it rejected Nasdaq’s claim, for insufficient evidence, that diversity along race, gender, and sexuality somehow improves corporate governance.
In the second lawsuit, a second-grade student at Sunrise Valley Elementary School in Fairfax County, Virginia, was arbitrarily and unlawfully prevented from attending school earlier this semester, in violation of her federal and state Constitutional rights to Equal Protection and Due Process, as well as her right to receive an education under the Virginia State Constitution. Because of the way the irrational policy works, the student could very well have to miss additional school going forward for 10 days at a time, unless the rule changes. NCLA filed a complaint, asking the U.S. District Court for the Eastern District of Virginia to vacate the unconstitutional quarantine policy.
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NCLA Files Amicus in Sen. Cruz Campaign Lawsuit
Mark explains the standing issue that led NCLA to file a SCOTUS amicus brief in FEC v. Cruz. FEC is urging the Supreme Court to adopt a new, heightened standard for establishing that an injury is “fairly traceable” to complained-of conduct, a showing required of all plaintiffs in order to establish their standing to sue. Adopting FEC’s theory of standing would significantly restrict judicial challenges to all kinds of unlawful federal government action.
The Clean Air Act and the Constitution Disallow EPA’s Power Grab
NCLA filed an amicus brief with the U.S. Supreme Court this week in West Virginia v. EPA, supporting the Petitioner States’ challenge against giving EPA vast power over entire economic sectors through a misreading of the Clean Air Act (CAA). NCLA argues that the judgment of the U.S. Court of Appeals for the D.C. Circuit should be reversed. The Constitution vests all legislative power in Congress. This means that national policy decisions are to be made by Congress, not by administrative agencies. The decarbonization of the energy industry—which the decision below authorizes EPA to impose—is a major national policy decision that Congress has not expressly made. Further, Congress may not delegate its legislative power over this decision for EPA to make in its stead.
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Sixth Circuit Reversal of Stay in OSHA Vax Mandate Case
On December 17, the U.S. Court of Appeals for the Sixth Circuit lifted the stay, originally put in place by the Fifth Circuit, of the Occupational Safety and Health Administration's emergency temporary standard for private employers with more than 100 employees.
NCLA argues in two amicus briefs filed in the Fifth and Sixth Circuit that to impose an invasive “vaccinate-or-test” requirement on over half the nation’s workforce is an unprecedented and unconstitutional exercise of legislative power—power which the Constitution vests solely in Congress.
Dr. Fauci Goes After Other Scientists Who Challenge Lockdowns
Mark criticizes Dr. Fauci and others, including the head of NIH, for their attempt to coordinate a “takedown” of the Great Barrington Declaration and other scientists that are opposed government lockdowns.
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Dissecting the Fifth Circuit’s Opinion in Cargill v. Garland
A three-judge panel of the Fifth Circuit held that the federal statute defining “machineguns” covers bump stocks, which are non-mechanical devices that can be attached to semi-automatic rifles. The panel’s decision conflicts with the views of a significant majority of judges who have examined that issue. On behalf of NCLA’s client, Michael Cargill, we will be filing a petition with the Fifth Circuit, asking that the case be reheard en banc by all 17 judges on the appeals court.
Judicial Restraint in Fifth Circuit Vaccine Case
It was a Fifth Circuit-palooza this week. To cap it off, Vec lauds the Fifth Circuit’s judicial restraint in the vaccine case, State of Louisiana v. Becerra.
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NCLA Wins Major Fifth Circuit en Banc Decision Versus SEC
In a major victory for NCLA, the full Fifth Circuit bench ruled that Texas accountant Michelle Cochran has the right to challenge the constitutionality of her Administrative Law Judge’s (ALJ) removal protections in federal court before undergoing an administrative adjudication. NCLA represents Ms. Cochran in Michelle Cochran v. Securities and Exchange Commission. We applaud this decision, which will allow our client to plead her case before a real Article III federal court rather than be subjected to an endless series of unlawful agency hearings.
At issue before the en banc panel was whether a provision of the Securities Exchange Act of 1934 implicitly strips federal district courts of subject-matter jurisdiction to hear structural constitutional claims. Judge Haynes’s opinion, joined by eight others, reverses and remands the district court’s reluctantly adverse decision. Her decision for the court holds that Section 78y of the Securities and Exchange Act of 1934 neither explicitly nor implicitly strips federal district courts of jurisdiction to decide Article II removal questions.
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NCLA Argues Before First Circuit in Cryptocurrency Lawsuit Against IRS
NCLA presented oral argument this week in the cryptocurrency lawsuit against the IRS, James Harper v. Charles P. Rettig, et al. NCLA filed an appeal with the U.S. Court of Appeals for the First Circuit, arguing that IRS took Mr. Harper’s data without reasonable suspicion and without a judicial warrant. NCLA contends IRS violated his Fourth and Fifth Amendment constitutional rights by obtaining his private financial information from virtual-currency exchanges without following statutory limitations on its power to issue subpoenas.
In August 2019, James Harper received a letter from the IRS accusing him of not having “properly reported” his “transactions involving virtual currency.” A press release followed shortly thereafter stating, “Taxpayers should take these letters very seriously” and “correct past errors.” Mr. Harper, one of more than 10,000 cryptocurrency holders who received such a letter, filed a lawsuit challenging IRS’s questionable information-gathering practices.
NCLA’s Victories This Year
Mark takes a year-end victory lap for NCLA!
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The Supreme Court Commission’s Final Report
President Joe Biden’s Supreme Court commission voted unanimously on Tuesday to submit a report that describes various proposals for reforming the highest court in the land. The 288-page report covers five major chapters.
Regarding court-packing, the report said: "No serious person, in either major political party, suggests court packing as a means of overturning disliked Supreme Court decisions, whether the decision in question is Roe v. Wade or Citizens United. Scholars could say, until very recently, that even as compared to other court reform efforts, ‘court-packing’ is especially out of bounds. This is part of the convention of judicial independence."
The Sixth Circuit En Banc’s Opinion on Bump Stocks
Last Friday, the en banc Sixth Circuit affirmed the district court’s judgment in the bump stock lawsuit, Gun Owners of America, Inc., et al. v. Merrick Garland, et al. The court upheld the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) expanded definition of a machine gun. The vote to affirm was 9-8 and there was no majority opinion.
NCLA filed an amicus brief in support of the plaintiffs.
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Supreme Court Examines Chevron Deference in Recent Oral Arguments
The Supreme Court heard oral arguments this week in the lawsuit, American Hospital Association v. Becerra, which addresses the extent to which courts should defer to the views of federal agencies regarding the meaning of congressional statutes. NCLA filed an amicus brief in the case.
NCLA’s Amicus Victory in Lawsuit Against FDA
NCLA Senior Litigation Counsel Rich Samp joins the show to discuss our recent amicus victory in Judge Rotenberg Education v. FDA, which became final last week when the U.S. Court of Appeals for the District of Columbia Circuit denied the Food and Drug Administration’s (FDA) petition that the case be reheard by all 13 judges on the Court.
Last July, a three-judge panel of the Court ruled in NCLA’s favor, holding that FDA violated federal law when it issued a regulation prohibiting a Massachusetts medical clinic from using an FDA-approved medical device to treat its patients in a manner that it has been using successfully for 50 years. The Court held that FDA’s regulation violated a federal statute that bars FDA from interfering with the practice of medicine.
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The Recent Victories Against OSHA, Federal Contractor, and CMS Vaccine Mandates
Mark and Vec discuss the recent victories against vaccine mandates. One of them is against the Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) on November 5, 2021, which requires employers with 100 or more employees to either implement a mandatory COVID-19 vaccination policy or force employees to present a weekly negative COVID-19 test. The ETS is unprecedently broad, invasive, and an unconstitutional exercise of legislative power vested in Congress. NCLA has filed an amicus brief challenging the mandate.
OSHA’s ETS is expected to force 84 million employees nationwide—over half the U.S. workforce—to either take a novel vaccine against an infectious disease, navigate weekly costly testing, or forfeit their jobs.
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Alliance for Fair Board Recruitment Files Brief Challenging SEC’s Board Diversity Rules
The U.S. Securities and Exchange Commission (SEC) is receiving more pushback over its recent approval of Nasdaq’s Board Diversity Rules, which require all companies listed on the exchange to not only publicly disclose board diversity statistics but also explain failures to meet new diversity requirements. The Alliance for Fair Board Recruitment has filed a brief challenging the new rules.
NCLA is also challenging the rules. We previously filed a Petition for Review in the U.S. Court of Appeals for the Third Circuit on behalf of the National Center for Public Policy Research. NCLA’s client, which owns shares in many Nasdaq companies, argues that SEC has no power to regulate in this field because the rules have nothing to do with fraud or honest markets.
The Squabble Between Ninth Circuit Judges Over Environmental Racism Issue
Mark and Vec discuss the squabble between Ninth Circuit judges over an environmental racism issue not in the NEPA case.
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SCOTUS Issues Decision in MS v. TN Water Rights Battle
On Monday, the U.S. Supreme Court unanimously favored Tennessee in a groundwater dispute with Mississippi. The Court rejected claims by the state of Mississippi that Memphis, Tennessee, had illegally stolen its groundwater for decades by pumping it from wells located outside the Mississippi border.
The Court held both states draw from the Middle Claiborne Aquifer, which is subject to a doctrine known as equitable apportionment that has previously been applied to the sharing of surface waters.
Is SCOTUS Interested in Undoing Stinson Deference After All?
The U.S. Supreme Court called for the Solicitor General’s views in the lawsuit challenging Stinson deference, Jayren Wynn v. United States of America. NCLA filed an amicus brief urging the Court to grant Mr. Wynn’s petition for certiorari and either discard Stinson deference altogether or at least rule that Stinson deference cannot increase criminal sentences.
This judicial-deference doctrine requires federal judges to defer to commentary the U.S. Sentencing Commission has written interpreting the U.S. Sentencing Guidelines. Under the current deference regime, district courts in seven circuits systematically violate the due-process rights of thousands of criminal defendants by applying Stinson deference to increase the Sentencing Guideline range beyond what Congress approved.
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NCLA Sues Over CT’s New Bar Rule That Chills Free Speech
Connecticut has adopted an amendment to its Rules of Professional Conduct for Connecticut-licensed lawyers that includes unconstitutional and impermissibly vague language governing speech by lawyers. The provision, Rule 8.4(7), applies broadly, permitting sanctions even against those who have not knowingly violated the Rule, and supplies only vague definitions of actionable speech on the basis of any one of 15 categories—among them race, sex, religion, disability, sexual orientation, and gender identity.
NCLA has filed a complaint on behalf of two Connecticut-licensed attorneys seeking a declaration from the U.S. District Court for the District of Connecticut that the Rule violates the First Amendment and provisions of the Connecticut Constitution.
Rittenhouse Trial: Should Cameras Be in the Courthouse?
Mark and Vec discuss Judge Bruce Schroeder’s recent comments describing the media coverage of the Kyle Rittenhouse trial and whether he might allow cameras in his courtroom in the future.
“I’m going to think long and hard about a live television trial again next time. I don’t know. I’ve always been a firm believer in it because I think the people should be able to see what’s going on, but when I see what’s being done, it’s really quite frightening,” Schroeder said.
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Update on Fifth Circuit OSHA Vaccine Mandate Ruling
The Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) on November 5, 2021, requires employers with 100 or more employees to either implement a mandatory COVID-19 vaccination policy or force employees to present a weekly negative COVID-19 test. The ETS is unprecedently broad, invasive, and an unconstitutional exercise of legislative power vested in Congress. NCLA filed an amicus brief in BST Holdings, LLC, et al. v. OSHA, et al. in the U.S. Court of Appeals for the Fifth Circuit, challenging the mandate.
OSHA recently announced that it was “suspending activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” On November 16, the U.S. Judicial Panel on Multidistrict Litigation held a lottery to select the federal appeals court to address the multiple petitions seeking review of the ETS. The U.S. Court of Appeals for the Sixth Circuit was randomly selected.
NCLA’s Litigation Over USDA’s Violation of FACA
NCLA has filed a reply brief in support of our appeal to the U.S. Court of Appeals for the Tenth Circuit in the lawsuit against the U.S. Department of Agriculture (USDA), R-CALF USA v. USDA, et al.
The principal contested issue in this case is whether two federal advisory committees, the Cattle Traceability Working Group (CTWG) and the Producers Traceability Council (PTC), were “established” by Appellees within the meaning of the Federal Advisory Committee Act (FACA). USDA denies they “established” the committees, but they do so by claiming that the term should be “narrowly” construed.
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Interview With Jared McClain on Recent Oral Argument in Satirical Tweet Case Against NLRB
NCLA represents FDRLST Media, LLC in a free speech lawsuit where a tweet in jest by Ben Domenech, publisher of The Federalist, resulted in a federal case with the National Labor Relations Board (NLRB). In Mr. Domenech’s case, the charging party is Joel Fleming, a random person on Twitter who is completely unrelated to The Federalist or its employees.
The governing statute only allows an “aggrieved” person (such as an employee) to file a charge with the Board. However, the NLRB has interpreted “aggrieved” to mean any person. This broad interpretation allows anyone who deems himself aggrieved—including a completely uninvolved person like Joel F.—to weaponize the NLRB’s investigatory processes against others with whom they disagree.
State Responses to Federal Mandate Actions by the Agencies
Mark and Vec talk about the various state responses to federal mandate actions by agencies.
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Lawless Actions by the Executive and What the Courts Can Do
Mark and Vec discuss recent examples of lawless actions by the Administrative State and what the courts can do about them.
Federal Workers With Naturally Acquired Immunity to COVID-19 File Class-Action Lawsuit
The lawsuit, James Joseph Rodden, et al. v. Dr. Anthony Fauci, et al., filed in the U.S. District Court for the Southern District of Texas by NCLA contends that the Federal Employee Vaccine Mandate violates employees’ constitutional and statutory rights. NCLA argues the Vaccine Mandate undermines Plaintiffs’ constitutional rights to bodily integrity and to decline medical treatment, and their statutory right to withhold informed consent.
See omnystudio.com/listener for privacy information.
NCLA Successfully Petitions NOAA to Delay Surveillance Rule
A rule requiring for-hire charter boat captains off the Gulf of Mexico to install vessel monitoring systems (VMS), a kind of GPS tracking device, on their boats to supply 24/7 location information to the U.S. Government has been put on hold. NCLA previously filed a petition with the National Oceanic and Atmospheric Administration (NOAA) to amend the effective date of the Final Rule by 90 days until March 14, 2022. (NOAA has only approved a delay until March 1, 2022)
NCLA represents over 1,300 federally permitted charter boat owners operating off the coasts of Alabama, Florida, Louisiana, Mississippi, and Texas, who are seeking relief against the Final Rule in the class-action lawsuit, Mexican Gulf Fishing Company, et al. v. NOAA, et al.
The VA Election and Administrative Power
Mark and Vec talk about the results of the most recent election in Virginia and explore how they relate to discussions about administrative power.
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Oral Arguments at SCOTUS Over NY Gun Rights and TX Abortion Cases
Mark and Vec discuss what the oral arguments reveal in two cases before the U.S. Supreme Court: a New York gun rights case and a Texas abortion case.
In the New York gun rights case, New York State Rifle & Pistol Association v. Bruen, the Justices may decide whether the State of New York’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.
The Supreme Court also heard arguments in challenges to S.B. 8—The Texas Heartbeat Act—one brought by Whole Woman’s Health, an abortion provider in Texas, and the other by the United States.
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The Upcoming Argument in FDRLST Media v. NLRB
FDRLST Media v. NLRB comes up for oral argument in U.S. Court of Appeals for the Third Circuit next month.
NCLA’s appellate brief asks the Third Circuit to reverse the flawed ruling of the National Labor Relations Board (NLRB) from last November, which concluded that Ben Domenech’s satirical tweet from his personal account constituted an unfair labor practice by his employer. FDRLST Media, publisher of the online magazine The Federalist, is fighting back because NLRB has neither subject-matter jurisdiction over this case nor personal jurisdiction over the company.
Reflections on Justice Thomas’s 30th Anniversary on the Court
Justice Clarence Thomas recently reflected on his time serving on the Supreme Court after being honored at Heritage with a commemoration of the 30th anniversary of his confirmation. Mark and Vec explore some of the memorable aspects of Justice Thomas’s tenure.
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AG Garland Agrees with NCLA on Home Confinement Rule
Mark and Vec discuss how the Attorney General apparently agrees with NCLA, not his own Department of Justice (DOJ), about the home confinement rule at issue in NCLA’s lawsuit Martinez-Brooks v. Garland.
At a Senate Judiciary hearing this week, AG Garland stated that home confinement during the COVID-19 pandemic has been successful and that he is strongly in favor of continuing the program. Also, this week, NCLA filed a response on behalf of client Dianthe Martinez-Brooks to the government’s motion to dismiss her lawsuit.
DOJ and Bureau of Prisons (BOP) have declared plans to order medically vulnerable people out of home confinement and back to prison as soon as the COVID-19 pandemic abates. In doing so, these agencies are ignoring statements from Congress, the plain language of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, and the Post-sentence Administration statutes. DOJ insists it has no choice but to reincarcerate people, despite the success of home confinement placements under the CARES Act. So, unless the court accepts NCLA’s argument, Ms. Martinez-Brooks will be forced to return to prison, even though imprisoning her again serves no legitimate purpose and the CARES Act does not provide for her re-incarceration.
CPSC Shenanigans Over Annual Agenda
Mark and Vec talk about the Consumer Product Safety Commission’s (CPSC) annual agenda and how it highlights the problem with independent commissions.
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The CA Law that Denies Counsel When State Sues You
Mark endorses the cert. petition at SCOTUS over a CA law that denies counsel when the state sues you. The lawsuit is Adir Int’l, et al. v. Starr Indemnity and Liability Co. In April 2021, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s summary judgment in favor of Starr Indemnity and Liability Company in a diversity insurance-coverage action.
California’s Attorney General sued Adir International, LLC for violating state consumer protection laws. After initially agreeing to provide coverage, Adir’s insurer, Starr Indemnity, said it would no longer pay for Adir’s defense pursuant to California Insurance Code § 533.5(b), which forbids insurer coverage in certain consumer protection cases brought by the state.
When Agencies Use Fees to Fund Their Own Budgets
Vec raises concerns with agencies using fees to fund their own (enforcement) budgets.
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President Biden’s Supreme Court Commission Report
Mark and Vec discuss President Biden’s SCOTUS Commission Report.
On April 9, 2021, President Biden issued an executive order forming the Presidential Commission on the Supreme Court of the United States. The commission is tasked with writing a report by mid-November on the contemporary debate over the role and operation of the Court. Draft materials that summarized arguments for and against various reform proposals have been released. Mark and Vec explore some of the more contentious proposals, including adding more justices to the Court.
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Michigan Judge Denies PI in MSU Vaccine Mandate Lawsuit
Judge Paul Maloney of the Western District of Michigan denied Plaintiff Jeanna Norris’s motion for a preliminary injunction challenging Michigan State University’s (MSU) vaccine mandate for employees with naturally acquired immunity to COVID-19 in the class-action lawsuit Norris v. Samuel L. Stanley, Jr., et al.
Notably, the Sixth Circuit recently upheld a temporary restraining order on behalf of soccer players at another Michigan university who sought religious exemptions to the school’s vaccine mandate, even though the athletes had no immunity whatsoever.
The Constitution of Knowledge
Mark discusses The Constitution of Knowledge: A Defense of Truth, Jonathan Rauch’s newest book, which discusses the Constitution of Knowledge, the system of institutions and norms that keeps us collectively anchored to reality and allows us to settle our viewpoint disagreements civilly.
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NCLA Challenges SEC’s Power to Authorize Board Diversity Rules
The U.S. Securities and Exchange Commission (SEC) is receiving pushback over its recent approval of Nasdaq’s Board Diversity Rules, which require all companies listed on the exchange to not only publicly disclose board diversity statistics but also explain failures to meet new diversity requirements. NCLA has filed a Petition for Review in the U.S. Court of Appeals for the Third Circuit on behalf of the National Center for Public Policy Research. NCLA’s client, which owns shares in many Nasdaq companies, argues that SEC has no power to regulate in this field because the rules have nothing to do with fraud or honest markets.
The diversity rules fall outside of SEC’s regulatory authority under the 1934 Securities and Exchange Act, which empowered SEC to regulate securities to ensure honest markets and enforce federal laws that punish fraud. These longstanding laws are being misinterpreted today by SEC to allow the agency, working with Nasdaq, to impose a “meet quota, explain why, or get delisted” regime.
Katie Couric Covers Up Ginsburg Comments
Katie Couric revealed in her new book that she previously omitted portions of a quote from an interview that she did with Ruth Bader Ginsburg. Couric admitted that she did it to protect Ginsburg from public backlash by cutting out negative comments she made about people who kneel during the national anthem.
See omnystudio.com/listener for privacy information.
ARPA and the Tax Cut Ban
The “Tax Cut Ban” provision within the American Rescue Plan Act of 2021 (ARPA) upends the structure of American Constitutionalism as we know it. NCLA has filed an amicus brief in State of Texas, State of Louisiana, and State of Mississippi v. Yellen, et al. in the U.S. District Court for the Northern District of Texas. NCLA argues that the conditions of the Tax Cut Ban violate several aspects of the Constitution, commandeer state officials, eviscerate federalism, and deny Americans a Republican form of state government. Further, the ban’s conditions are ambiguous and the regulations issued by Treasury cannot cure the nondelegation problem created by an ambiguous statute. Simply put, Congress cannot purchase states’ sovereign power of taxation.
ARPA, enacted on March 11, 2021, led to the U.S. Department of Treasury’s guidelines for the Tax Cut Ban, which impermissibly restrict states that receive aid from using the funds to “either directly or indirectly offset a reduction in the net tax revenue.” The stimulus package offers approximately $200 billion to states to assist with recovery from the economic damage inflicted by the COVID-19 pandemic. For most states, the ARPA funds represent 20-30% of a state’s overall budget. The unprecedented need for assistance arising from the COVID-19 pandemic, combined with the dramatic financial incentive ARPA funds represent, makes it impractical for the Plaintiff states to refuse funds raised from their own taxpayers to which they are entitled.
Justice Alito Fires Back at Critics
Justice Alito is firing back at critics for portraying the Supreme Court’s “shadow docket” in “sinister terms.” During a speech at the University of Notre Dame, Justice Alito said that critics were trying to frame the court as “having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.”
In a recent Senate hearing, Senator Durbin criticized the Court for denying abortion providers’ request for emergency relief against S.B. 8. Senator Durbin’s further complained that the Court has been ideologically “selective” in granting relief.
Justice Alito explained that the way the court handles emergency applications is not new. "We do not solicit these emergency applications. Parties file them," Justice Alito said. "And when they file them, we are obligated to act on them."
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The People Affected by Vaccine Mandates
Mark and Vec discuss some of the stories of people affected by vaccine mandates.
NCLA Files Petition in Mexican Gulf Fishermen Class Action Lawsuit
The National Oceanic and Atmospheric Administration’s (NOAA) Final Rule, Electronic Reporting for Federally Permitted Charter vessels and Headboats in Gulf of Mexico Fisheries, subjects charter boats operating in the Gulf of Mexico to 24-hour warrantless surveillance. NCLA has filed a petition with NOAA requesting the Final Rule be amended and its effective date be delayed for 90 days until March 14, 2022. NOAA should permit the U.S. District Court for the Eastern District of Louisiana time to determine the validity of the Rule before requiring petitioners and their respective class—thousands of Gulf charter boat captains and companies—to purchase, install, and operate what they believe are costly and unconstitutionally invasive tracking devices.
See omnystudio.com/listener for privacy information.
Merrick Garland Rescinds the “Brand Memo” on Guidance
Recently, Attorney General Merrick Garland issued a memorandum and interim final rule, which effectively rescinded the “Brand Memorandum.” In January 2018, then-Associate Attorney General Rachel Brand issued the memo, in which she instructed the Department of Justice (DOJ) that it was prohibited from using agency “guidance” documents to prosecute defendants for civil violations, including under the False Claims Act.
Attorney General Garland directed DOJ attorneys not to rely on sub-regulatory agency guidance to bring False Claims Act cases and other enforcement actions.
The Mootness Doctrine in Government Litigation
Vec discusses the mootness doctrine in government litigation.
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Second Circuit Fails to Address Unconstitutionality of SEC’s Lifetime Gags
On Monday, a three-judge panel of the U.S. Court of Appeals for the Second Circuit incorrectly denied the motion for relief from judgment in the case of former Xerox Chief Financial Officer and NCLA client Barry Romeril. Mr. Romeril had argued that a lifetime “gag order” imposed on him in 2003 by the U.S. Securities and Exchange Commission (SEC) is unlawful and violated his First Amendment rights.
NCLA believes the court not only erred in its decision, but also failed to address many of Mr. Romeril’s key arguments. For example, the court did not tackle arguments that the gag rule violated the Administrative Procedure Act from its inception, that it ignores the public’s right to hear the verboten speech, that it is a forbidden content-based restriction on speech, an unconstitutional condition that operates in perpetuity, and that it implicates the judiciary in unconstitutional orders. The gag order also denies due process of law by prohibiting those who settle with the SEC from speaking freely about their cases, something that the U.S. Supreme Court and other federal courts have said both convicted murderers and disciplined judges have every right to do. The notion that Mr. Romeril somehow bargained away his right to speak misses the fact that his silence was not something the Government could have won as a penalty in the case. Mr. Romeril raised all these issues in his case; unfortunately, the panel failed to address them.
Senator Durbin and the Shadow Docket
In a hearing on Wednesday, Senator Dick Durbin delivered opening remarks on Texas’s S.B. 8—The Texas Heartbeat Act—legislation on abortion and the Supreme Court’s “shadow docket.”
Senator Durbin criticized the Court for denying abortion providers’ request for emergency relief against S.B. 8. Senator Durbin’s further complained that the Court has been ideologically “selective” in granting relief.
See omnystudio.com/listener for privacy information.
NCLA Argues Before Federal Court in Vaccine Mandate Lawsuit
This week, NCLA attorneys Jenin Younes and Harriet Hageman argued a preliminary injunction motion in the U.S. District Court for the Western District of Michigan before the Honorable Paul Maloney. NCLA’s class-action lawsuit challenges Michigan State University’s vaccine mandate for employees with naturally acquired immunity to COVID-19.
NCLA presented expert witness testimony of Dr. Hooman Noorchashm, who explained that natural immunity is equivalent to or superior to that achieved through vaccination. Dr. Noorchashm’s testimony drew on a voluminous body of research, including a recent landmark Israeli study which found that “natural immunity affords longer-lasting and stronger protection against infection, symptomatic disease and hospitalization due to the Delta variant.”
Differential Treatment of the Federal Government on Court Deadlines
Mark discusses the problem with differential treatment of the federal government in terms of court deadlines.
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Justice Thomas on the Supreme Court’s Independence
In a recent lecture at the University of Notre Dame, Supreme Court Justice Clarence Thomas warned against “destroying our institutions because they don’t give us what we want, when we want it,” arguing that the high court must remain independent from political polarization.
“The court was thought to be the least dangerous branch, and we may have become the most dangerous,” Thomas said. “And I think that’s problematic.”
Justice Thomas also criticized the judiciary for sometimes veering into the role of legislators and politicians, saying it is not the role of judges to make policy.
The Upcoming SCOTUS Case on Second Am. Rights
The Supreme Court recently granted certiorari in what could be a major Second Amendment case, New York State Rifle & Pistol Association v. Bruen. The Justices may decide whether the State of New York’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.
New York prohibits its citizens from carrying a handgun outside the home without a license. At issue is whether New York’s gun licensing policy violates the constitutional right to bear arms by requiring applicants to demonstrate “proper cause” in order to obtain a license. The petitioners allege that New York has made it virtually impossible for citizens to obtain a license because it requires every citizen to have a “proper cause” to carry a firearm.
See omnystudio.com/listener for privacy information.
President Biden’s Federal Vaccine Mandate
Last week, President Biden issued an executive order mandating COVID-19 vaccines for federal employees. NCLA is opposed to the government implementing a vaccine mandate, which will force federal employees and contractors into choosing between their health and personal autonomy and suffering serious detriment to their professional careers.
NCLA has filed several lawsuits against public universities (George Mason University and Michigan State University) over their vaccine mandates for employees who have naturally acquired immunity to COVID-19.
Contrary to the views of Former Food and Drug Administration Commissioner Dr. Scott Gottlieb and a recent Israeli study that concluded naturally acquired immunity is superior to vaccine immunity, the federal government refuses to recognize naturally acquired immunity in its vaccine mandate.
NCLA argues that it is fundamentally improper for policymakers to ignore the evidence that naturally acquired immunity, in Dr. Gottlieb’s words, “confers a durable protection.” The federal government should not be permitted to infringe on its employees’ rights to bodily autonomy and to reject medical treatments by making their continued employment conditional on taking a medically unnecessary vaccine.
The Federal Arbitration Act and the 9th Circuit’s Decision to Uphold CA’s AB51
AB51 is a California law that bans mandatory arbitration and imposed criminal penalties on employers for mandating arbitration. The law was set to take effect in 2019. AB51 was stopped by a temporary restraining order and then an injunction in January 2020 in the US District Court.
It was argued that AB51 conflicted with the Federal Arbitration Act and was therefore unconstitutional.
This week, the 9th Circuit ruled that AB51 is only partially unconstitutional as to the criminal penalties.
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Justice Barrett: Supreme Court Isn’t Driven by Politics
Mark and Vec discuss Justice Barrett’s speech at the 30th anniversary of the opening of the McConnell Center at the University of Louisville.
Justice Barrett told the crowd that she doesn’t believe the highest court in the land is politically driven. She said the Court is defined by “judicial philosophies” instead of personal political views.
“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks.”
SCOTUS Case Could Spell the End of Chevron Deference
A case on the Supreme Court’s docket for its 2021-22 term could spell the beginning of the end of Chevron deference. In an amicus brief filed last week in American Hospital Association, et al. v. Xavier Becerra, et al., NCLA argues that the D.C. Circuit improperly applied Chevron deference to HHS’s interpretation of a statute that allowed the agency to set reimbursement rates for the plaintiffs, a group of hospitals that participate in the Section 340B Drug Pricing Program.
Under the Chevron doctrine, courts defer to an administrative agency’s “reasonable” interpretation of a statute, even if the reviewing court thinks that there is a better, competing interpretation. Chevron deference compels judges to abandon their duties of independent judgment, thereby undermining separation-of-powers principles. It has been more than five years since the Supreme Court has relied on Chevron deference to uphold an agency’s interpretation of a federal statute. The Court should not only reverse the D.C. Circuit’s decision, but also call into question the constitutional underpinnings of Chevron and express a willingness to consider overruling it.
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Denying Candace Owens a Lab Test Is Insane
Recently, political analyst and author Candace Owens was denied medical care in the form of a COVID-19 test by a Colorado laboratory because of her political beliefs.
She said in a tweet that the testing lab refused her request for a test, citing her "spreading misinformation" about the pandemic.
"I just received an e-mail from a Covid testing facility that they are REFUSING to administer a test to me because they don't like my politics. INSANE," Owens wrote on Twitter.
24/7 Warrantless Surveillance of Gulf of Mexico Charter Boats
Charter boat fishing is estimated to account for approximately 0.2 percent of the 1.5 billion pounds of fish caught each year in the Gulf of Mexico. Yet, if you were to believe the National Oceanic and Atmospheric Administration (NOAA), the 1,300 federally permitted charter boats operating in the Gulf require 24-hour warrantless surveillance to protect fisheries. NCLA recently released a video highlighting the class-action lawsuit, Mexican Gulf Fishing Company, et al. v. NOAA, et al. The lawsuit challenges a Final Rule that requires each charter boat to be “equipped with [approved] hardware and software with a minimum capability of archiving GPS locations.”
You can watch the video here: https://www.youtube.com/watch?v=AW_64sFZUWg
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Breyer’s New Book: The Authority of the Court and the Peril of Politics
Vec discusses Justice Breyer’s new book, “The Authority of the Court and the Peril of Politics.”
In the upcoming book, based on his April 2021 Harvard lecture of the same name, Justice Breyer “reflects upon the authority of the Supreme Court—how that authority was gained and how measures to restructure the Court could undermine both the Court and the constitutional system of checks and balances that depends on it.”
You can watch the lecture here: https://www.youtube.com/watch?v=bHxTQxDVTdU
Should Bivens Be Overturned?
The Supreme Court’s 1971 landmark decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics found that a federal agent who commits an unconstitutional search and seizure can be held liable in damages through a right of action implied under the Fourth Amendment. Should the decision be overturned? Critics have long questioned SCOTUS’s decision to fashion a federal common law right of action to enforce the Fourth Amendment. The Court’s recent decision in Hernandez v. Mesa raises significant questions about the future of civil rights remedies against federal officials.
See omnystudio.com/listener for privacy information.
Missouri v. Yellen and Seizing Tax Authority From the States
Vec reviews ripeness and mootness in the lawsuit, Missouri v. Yellen.
NCLA warns that the U.S. Department of Treasury’s “Tax Cut Ban” provision of the American Rescue Plan Act of 2021 (ARPA) is unconstitutional. ARPA offers approximately $195 billion to states and their residents to assist with economic recovery from the Covid-19 pandemic, but only on the condition that the states accept the Tax Cut Ban provision of the bill that prohibits reducing state taxes.
In May, a Missouri federal court denied a request for an injunction and dismissed the case.
Due Process Versus Scientism
Mark discusses due process versus scientism and the decline of due process in the face of the technocracy.
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SCOTUS Rules Against CDC Eviction Moratorium
In a case based on legal arguments NCLA first advanced, SCOTUS handed down a 6-3 decision to lift the stay of a federal district judge’s decision setting aside CDC’s unlawful nationwide moratorium order.
NCLA represented the very first plaintiffs to file a complaint against CDC over the agency’s nationwide eviction moratorium. In the Brown v. CDC lawsuit, filed on September 8, 2020, NCLA argued that agencies have no inherent power to make law and that CDC has no statutory authority to order an eviction moratorium.
Housing providers across the country have been vindicated by the Supreme Court’s decision. In the per curiam opinion, the Court stated, “It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.” The statute invoked by CDC was a “wafer-thin reed on which” the agency based a “breathtaking amount of authority.” The Court added, “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” NCLA commends the Supreme Court for its belated decision to uphold the rule of law but warns that there is work left to be done in the lower courts.
NCLA’s Vaccine Lawsuit Against Michigan State University
NCLA filed a class-action complaint in the U.S. District Court for the Western District of Michigan on behalf of Jeanna Norris and similarly situated individuals at Michigan State University (MSU).
Jeanna Norris is a supervisory Administrative Associate and Fiscal Officer at MSU. She has naturally-acquired immunity to COVID-19 after recovering from the virus late last year. However, the university has threatened disciplinary action, even termination, if she and other employees do not comply with the school’s mandatory COVID-19 vaccination policy. Ms. Norris is challenging Michigan State’s unconstitutional “COVID Directives” for the Fall 2021 semester.
This week, U.S. District Judge Paul Maloney denied NCLA’s request for a temporary restraining order against the university.
See omnystudio.com/listener for privacy information.
Why Jacobson v. Mass. Does Not Authorize All Mandatory Vaccines
Mark analyzes why Jacobson v. Massachusetts does not authorize all mandatory vaccines. Jacobson is a 1905 Supreme Court decision in which the Court held that the Massachusetts law requiring residents to be vaccinated against smallpox was a legitimate exercise of the state's police power to protect the public health and safety of its citizens.
Reviewing the Ninth Circuit’s Recent Upholding of L.A. Eviction Moratorium
Mark reviews the Ninth Circuit’s recent upholding of Los Angeles’ eviction moratorium against a Contracts Clause challenge. The Ninth Circuit refused to block the city’s moratorium on evictions during the coronavirus pandemic, saying the moratorium’s goal was fairly tied to protecting public health and doesn’t violate landlords’ rights under the Constitution’s Contract Clause. The Apartment Association of Greater Los Angeles sued the city of Los Angeles on June 11, 2020, challenging the eviction ban, prohibitions on late fees and interest on unpaid rent, and moratorium on annual rent increases.
See omnystudio.com/listener for privacy information.
SCOTUS Keeps ‘Remain in Mexico’ Policy in Place
Vec explores the meaning of the Supreme Court’s refusal to halt an injunction, forcing President Biden to keep the ‘Remain in Mexico’ policy in place.
This week, the Supreme Court refused to block a court order requiring the Biden administration to reinstate the Remain in Mexico policy. The policy requires asylum seekers at the southern border to stay in Mexico while they await hearings in U.S. courtrooms to determine their eligibility and status. The ruling is a judicial setback for the Biden administration, which has maintained it can’t implement the Remain in Mexico policy without the Mexican government agreeing to accept migrants returned by the U.S.
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NCLA’s NJ Supreme Court Challenge to Check Governor Murphy’s Emergency Powers
NCLA Litigation Counsel Kara Rollins joins the show to discuss Kravitz v. Murphy. New Jersey Governor Phil Murphy used the Covid-19 public-health emergency to unilaterally and unlawfully modify the rights and obligations of housing providers and tenants who had mutually entered into contracts that explicitly required security deposits. This week, NCLA filed a petition for certification with the Supreme Court of New Jersey in Kravitz. NCLA asks the Supreme Court to reverse the Superior Court of New Jersey, Appellate Division’s ruling that Governor Murphy’s Executive Order 128 was a valid exercise of the Governor’s emergency powers under the Disaster Control Act.
U.S. v. Arthrex and the end of Morrison v. Olson
The Supreme Court decision in United States v. Arthrex concluded that the Patent and Trademark Appeal Board (PTAB) is unconstitutionally structured, but it is unlikely to have a major impact on PTAB operations. The Court “fixed” the constitutional violation by adding an extra step to the administrative review process, thereby permitting PTAB for the most part to continue business as usual.
But Arthrex will have a significant and largely overlooked impact on constitutional law: it has sub silentio overruled Morrison v. Olson, the highly controversial 1988 decision that upheld the constitutionality of the Ethics in Government Act of 1978 (aka the Independent Counsel Act).
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George Mason University Caves to NCLA’s Lawsuit over Vaccine Mandate
NCLA is pleased to announce that George Mason University has granted a medical exemption from its mandatory Covid-19 vaccination policy to NCLA client Todd Zywicki, George Mason University Foundation Professor of Law at Antonin Scalia Law School. NCLA is delighted with Prof. Zywicki’s victory for freedom. His brave determination to fight the university’s misguided and scientifically unsound vaccination mandate has garnered nationwide attention. GMU and other universities must stop ignoring science and cease forcing mandatory vaccines on even those with naturally acquired immunity (especially if only approved under a federal Emergency Use Authorization statute).
Read more about the case here: https://nclalegal.org/zywicki-v-gmu/
SCOTUS Strikes Portion of NY’s Eviction Moratorium
The Supreme Court voted 6-3 against part of New York State’s eviction moratorium. The ruling temporarily lifts part of New York’s policy, which had precluded landlords from challenging a tenant’s self-certified claim of financial hardship. “This scheme violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause,” the Court wrote in its opinion.
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The Incentives Courts Give to Bad Actions by the Executive
Vec criticizes the incentives courts give to unlawful actions by the executive.
NCLA Defends Elon Musk Against NLRB’s Failure to Heed the Supreme Court
The National Labor Relations Board’s (NLRB) preoccupation with Twitter continues to grow. Its latest victim is Tesla CEO Elon Musk. NCLA filed an amicus brief in the U.S. Court of Appeals for the Fifth Circuit in support of Tesla, Inc.’s lawsuit against NLRB. Tesla Inc. v. NLRB challenges the Board’s March 2021 ruling that Tesla violated the National Labor Relations Act and further that the electric vehicle manufacturer would be required to “direct Musk to delete [his] unlawful tweet.”
In the Summer of 2018, the United Auto Workers union and a handful of Tesla’s employees filed a charge with NLRB alleging that Tesla committed an unfair labor practice when Mr. Musk tweeted a statement on his personal Twitter account. An NLRB administrative law judge concluded that Tesla violated labor laws “by … [t]hreatening employees on May 20, 2018, with loss of stock options if they vote in favor of the Union.”
Read more about the case here: https://nclalegal.org/tesla-v-nlrb/
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NCLA Celebrates Jury Verdict Exonerating Our Clients from Inaccurate SEC Charges
Vec is back from trial and is ready to co-host Administrative Static once again. A federal jury in the Middle District of Florida delivered a favorable verdict in U.S. Securities and Exchange Commission v. Spartan Securities Group, LTD., et al. NCLA commends the jurors who fully exonerated clients David Lopez, former Chief Compliance Officer for Spartan Securities Group, Ltd. and Island Capital Management, before Judge Virginia Hernandez Covington. The jury also ruled in favor of our other clients, Spartan Securities Group and Carl Dilley (on 12 out of 13 charges), and Micah Eldred and Island Stock Transfer (on 11 counts out of 12), rejecting multiple allegations of fraud, aiding and abetting, as well as regulatory violations of the Securities Act of 1933 and the Securities Exchange Act of 1934.
Read more about the case here: https://nclalegal.org/u-s-securities-and-exchange-commission-v-spartan-securities-group-ltd-et-al/
The Good and the Bad Vaccine Lawsuits
Mark explains the difference between the good and the bad lawsuits challenging vaccine mandates, given the current state of the law.
NCLA filed a complaint in the U.S. District Court for the Eastern District of Virginia on behalf of Antonin Scalia Law School Professor Todd Zywicki against GMU’s unconstitutional reopening policy for the Fall 2021 semester. GMU is threatening employees with disciplinary action that includes “unpaid leave or possible loss of employment” if they don’t comply with the public university’s vaccine mandate. The policy also requires all unvaccinated faculty and staff members, including those who can demonstrate natural immunity through recovery from a prior Covid-19 infection, to not only disclose their vaccination status as “a prerequisite for eligibility for any merit pay increases,” but also be forced into choosing between their health and personal autonomy and suffering serious detriment to their professional careers.
Read more about the lawsuit here: https://nclalegal.org/2021/08/ncla-sues-gmu-officials-over-their-refusal-to-recognize-prof-s-naturally-acquired-covid-immunity/
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Dissecting OLC's Indefensible Opinion on Vaccine Emergency Use Statute
In a highly publicized opinion recently made public, the U.S. Department of Justice’s Office of Legal Counsel (OLC) argues that public and private entities can lawfully mandate that their employees receive one of the Covid-19 vaccines. The opinion is silent on preemption, however, and thus cannot be read to prevent the Emergency Use Authorization (EUA) statute from having its ordinary preemptive effect, and this is especially true where OLC was assigned no role by Congress to administer the EUA statute. The OLC opinion is deeply flawed on multiple additional legal grounds.
The New CDC Eviction Moratorium Is Still Entirely Unlawful—And Worse Than the First One
This week, CDC Director Walensky officially extended the eviction moratorium through Oct. 3. In a press release, the agency said the new order applies in "areas of high transmission" of Covid-19.
In multiple lawsuits across the country, NCLA is arguing that the eviction moratorium far exceeds the constitutional and statutory limits of CDC’s authority. The agency’s radical and unprecedented interference with access to state courts has deprived Americans across the country of their constitutional right to resolve their legal disputes in court.
Last month, the U.S. Court of Appeals for the Eleventh Circuit rejected the request of Rick Brown of Virginia and other hard-hit housing providers across the country to put an end to the eviction moratorium issued by CDC. In a 2-1 decision in Brown, et al. v. CDC, et al., the panel affirmed the lower court’s refusal to enjoin CDC’s unlawful eviction moratorium. NCLA is carefully considering whether to appeal this adverse ruling to the U.S. Supreme Court or return to district court for trial.
NCLA also filed a class-action lawsuit, Mossman v. CDC, in the U.S. District Court for the Northern District of Iowa.
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The Lawsuit Against GMU Over Refusal to Recognize Prof.’s Naturally-Acquired Covid Immunity
George Mason University (GMU) is threatening employees with disciplinary action that includes “unpaid leave or possible loss of employment” if they don’t comply with the public university’s vaccine mandate.
NCLA filed a complaint in the U.S. District Court for the Eastern District of Virginia on behalf of Antonin Scalia Law School Professor Todd Zywicki against GMU’s unconstitutional reopening policy for the Fall 2021 semester. The policy requires all unvaccinated faculty and staff members, including those who can demonstrate natural immunity through recovery from a prior Covid-19 infection, to not only disclose their vaccination status as “a prerequisite for eligibility for any merit pay increases,” but also be forced into choosing between their health and personal autonomy and suffering serious detriment to their professional careers.
Read more about the lawsuit here: https://nclalegal.org/2021/08/ncla-sues-gmu-officials-over-their-refusal-to-recognize-prof-s-naturally-acquired-covid-immunity/
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Colorado Withdraws Misguided Plan to Reduce Private Car Commuting
The Colorado Department of Public Health and Environment is going to significantly scale down an unsound proposed rule aimed to reduce private car commuting. The rule in its current form, according to the Colorado Chamber of Commerce, could “damage the Colorado economy, and disparately burden certain communities and industries.”
NLRB’s Double Standard for Scabby the Rat v. ‘Salt Mine’ Tweet
In a 3-1 decision last week, the NLRB concluded that “displaying banners or an inflatable rat near the entrance” of an employer does not, “without more, … ‘threaten, coerce, or restrain’ the [employer] in violation of” the National Labor Relations Act. In other words, “more” is needed to convert Scabby the Rat display into a threat, coercive act, or restraint. The same should be true of the "salt mine" tweet at issue, which was made in jest and expressed the tweeter’s personal views on a then-current publicly debated topic. In endorsing Scabby the Rat and censuring Ben Domenech, NLRB has revealed the deep chasm between reality and NLRB’s perception of it.
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Gold King Mine Disaster and Todd Hennis’s Story
It could very well be one of the largest environmental disasters ever inflicted by the U.S. government itself, and yet the perpetrators refuse to take responsibility. On the morning of August 5, 2015, the Environmental Protection Agency dug away tons of rock and debris that blocked the portal of the Gold King Mine. By breaching the collapsed portal of the Mine, EPA triggered a massive release of toxic sludge of over 3,000,000 gallons of acid mine drainage and 880,000 pounds of heavy metals onto the private property below and into the waterways downstream, including the Animus River, the remnants of which linger to this day.
Questions for SCOTUS in Aposhian Bump Stock Cert Petition
The bump stock rule made it a new federal crime to own a bump stock, even one purchased with ATF’s prior permission. ATF knows it didn’t have the authority to enact such a law. Instead of defending the rule, ATF now pretends the ban is just a recommendation for the public. NCLA is confident the court will see through ATF’s games and strike down this invalid rule.
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IRS Goes After Cryptocurrency User Data
NCLA Litigation Counsel Adi Dynar joins the show to discuss thelawsuit James Harper v. Charles P. Rettig, et al. NCLA contends the IRS violated his Fourth and Fifth Amendment constitutional rights by obtaining his private financial information from virtual-currency exchanges without following statutory limitations on its power to issue subpoenas.
In August 2019, James Harper received a letter from the IRS accusing him of not having “properly reported” his “transactions involving virtual currency.” A press release followed shortly thereafter stating, “Taxpayers should take these letters very seriously” and “correct past errors.” Mr. Harper, one of more than 10,000 cryptocurrency holders who received such a letter, filed a lawsuit challenging the IRS’s questionable information-gathering practices.
Read more about the case here: https://nclalegal.org/james-harper-v-charles-p-rettig-et-al/
The New State Bar Association Rules That Restrict Speech
NCLA Senior Litigation Counsel Peggy Little joins the show to discuss the new state bar association rules that restrict speech. ABA Model Rule 8.4(g) is intended to “more effectively guard against harassment and intimidation in the legal community,” but its vague language exposes attorneys to discipline even if they lack any intent to discriminate against others.
Because “harassment” has no fixed meaning, bar officials would be free to adopt an expansive definition in cases involving speech they find distasteful, declare that the speaker “reasonably” should have been aware of that definition, and impose career-ending sanctions on the speaker. The Model Rule does not even require a showing that the lawyer intended to discriminate against or harass anyone. These defects will inevitably chill attorneys’ speech in the future.
Nearly 20 states have either completely or largely rejected the adoption of ABA Model Rule 8.4(g) because of its infringement on free-speech rights.
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The New SCOTUS Cert Petition in Axon v. FTC
Axon Enterprise will ask the U.S. Supreme Court to hear its constitutional challenge to the Federal Trade Commission's (FTC) merger review process. The body camera manufacturer failed in its bid to escape FTC administrative jurisdiction when a split panel for the Ninth Circuit Court of Appeals affirmed the dismissal of the lower court.
Justice Thomas Takes Shot at Qualified Immunity for School Officials
In a statement on the denial of certiorari in Hoggard v. Rhodes, Justice Thomas criticized the jurisprudence that affords school officials the same immunity given to police officers.
"But why should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting?" Thomas wrote. "We have never offered a satisfactory explanation to this question."
You can find Justice Thomas’s statement here: https://www.supremecourt.gov/opinions/20pdf/20-1066_ihdk.pdf
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Buyer Beware, D.C. Cir. Dismisses Challenge to CPSC’s Paywall
NCLA Litigation Counsel Jared McClain joins the show to discuss theD.C. Circuit’s ruling to dismiss the case Lisa Milice v. U.S. Consumer Product Safety Commission. NCLA was helping Lisa Milice, a new mother, in her challenge against the U.S. Consumer Product Safety Commission’s (CPSC) practice of keeping consumer product safety standards hidden behind a private paywall.The lawsuit challenging this CPSC practice was dismissed over a procedural technicality. According to the Court, the 60-day clock on filing a lawsuit now begins to run the day the agency publishes notice of its rule and asks for public comment. The implication of this ruling means that consumers and manufacturers will now have to file costly lawsuits before they’ve had a chance to raise their concerns with CPSC during the comment period, or else they lose their right to sue. Manufacturers will also now have to buy American Society for Testing and Materials' standards before CPSC even confirms that those standards will become binding law.
Read more about the case here: https://nclalegal.org/lisa-milice-v-u-s-consumer-product-safety-commission/
NCLA’s Lawsuit Against USDA Over RFID Eartags for Livestock
In April 2020, NCLA filed a reply brief in the U.S. District Court for the District of Wyoming, aiming to protect livestock producers’ rights to use traditional low-cost methods related to animal identification and traceability. NCLA’s brief argues that the U.S. Department of Agriculture (USDA) and its subagency, the Animal and Plant Health Inspection Service (APHIS), failed to comply with the statutory requirements of the Federal Advisory Committee Act (FACA).
NCLA has already been successful in forcing USDA to withdraw its two-page factsheet directing livestock producers to use RFID eartags. The controversy, however, remains alive because USDA is moving ahead with plans to mandate RFID for cattle by 2023.
Read more about the case here: https://nclalegal.org/r-calf-usa-v-united-states-department-of-agriculture/
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The History of Equality in the WY and U.S. Constitutions
NCLA Senior Litigation Counsel Harriet Hageman discusses a brief history of women’s rights under the federal and Wyoming constitutions. This week Wyoming celebrated its 131st birthday. Wyoming is known as the "Equality State." In 1869, Wyoming passed the first unconditional law in the U.S. permanently guaranteeing women the inherent right to vote and hold office.
The Eleventh Circuit’s Disappointing Decision On the CDC Eviction Moratorium
This week, the U.S. Court of Appeals for the Eleventh Circuit rejected the request of Rick Brown of Virginia and other hard-hit housing providers across the country to put an end to the eviction moratorium issued by the Centers for Disease Control and Prevention (CDC). In a 2-1 decision in Brown, et al. v. CDC, et al., the panel affirmed the lower court’s refusal to enjoin CDC’s unlawful eviction moratorium. NCLA filed the first lawsuit against CDC’s unconstitutional action with this case last September, arguing that the agency has no statutory authority to issue an eviction moratorium order. Although a majority of the court appeared inclined to agree that CDC lacks statutory authority, the court nonetheless decided that the plaintiffs did not show sufficient “irreparable harm” to merit a preliminary injunction.
Read more about the case here: https://nclalegal.org/rick-brown-v-secretary-alex-azar-et-al-ncla-challenges-unlawful-cdc-order-that-leaves-landlords-powerless-to-evict-delinquent-tenants/
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The Problem with Vaccine Mandates and Vaccine Passports
NCLA Litigation Counsel Jenin Younes joins the show to discuss two questions: (1) may the government lawfully compel citizens to take a new, experimental vaccine? and (2) does New York’s vaccine passport program, which purports to be voluntary, constitute government compulsion?
D.C. Circuit Vacates FDA Final Rule Wrongfully Regulating Practice of Medicine
“When Congress has spoken in a statute, we assume that it says what it means and that the statute means what it says,” concluded the U.S. Court of Appeals for the D.C. Circuit in an opinion this week in The Judge Rotenberg Educational Center, Inc. v. U.S. Food and Drug Administration. The Court declared that the Food and Drug Administration’s (FDA) Final Rule banning one specific use of an FDA-approved medical device improperly interferes with the practice of medicine. The Court further agreed with NCLA that the Food, Drug & Cosmetic Act does not permit FDA to ban an already-approved device for some uses, but not others. NCLA filed a November 2020 amicus brief making these two points, as well as arguing that FDA ran roughshod over petitioners’ procedural rights and arrogated to itself powers not delegated by Congress.
Read more about the case here: https://nclalegal.org/amicus-brief-the-judge-rotenberg-educational-center-inc-v-u-s-food-and-drug-administration-et-al-luis-aponte-et-al-v-u-s-food-and-drug-administration-et-al-ncla-brief-asks-dc-circuit-to-st/
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Feds Can’t Enforce Tax Cut Ban in Ohio
A recent federal court ruling permanently enjoins the Secretary of the Department of Treasury from enforcing the “Tax Mandate” provision of the American Rescue Plan Act of 2021 (ARPA) against the State of Ohio. ARPA, enacted on March 11, 2021, includes the short—but constitutionally alarming—provision, which impermissibly seizes taxing authority from the states. NCLA filed amicus briefs in State of Ohio v. United States Department of the Treasury, et al. and in State of West Virginia, et al. v. United States Department of the Treasury, et al. to support petitioner states against the unprecedented attempt by Congress to usurp state taxing authority.
Read more about the case here: https://nclalegal.org/amicus-brief-state-of-ohio-v-united-states-department-of-the-treasury-et-al/
SCOTUS Cert Denial Kicks Kelo Can Down the Road
On July 2, SCOTUS denied the petition for a writ of certiorari in Fred Eychaner v. City of Chicago. The case asked the Supreme Court to reconsider Kelo v. New London. At issue is whether the city's argument that it needed to take land from a property owner because the area otherwise could become "blighted" constitutes public use. Justice Thomas in his dissent wanted to correct a mistake he believes the Court made in its 2005 Kelo v. New London opinion, which found that "economic development" satisfied the public use requirement in a New London, Connecticut, takings dispute.
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Title IX Due Process Violations with Reed Rubinstein
Reed Rubinstein, former NCLA Senior Litigation Counsel, gives an account of recent developments surrounding Title IX. He is a recognized advocate for administrative law reform and testified to Congress on the need to roll back regulatory overcriminalization. Mr. Rubinstein joined the Trump Administration in January 2017, serving as General Counsel of the U.S. Department of Education. He led or played a material role in many regulatory and Executive actions and orders, including Guidance Regarding Department of Education Grants, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance; Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication.
Justice Kavanaugh Casts Deciding Vote to Leave CDC Eviction Moratorium in Place
The U.S. Supreme Court refused to lift a moratorium on evictions in a 5-4 vote. Justice Kavanaugh and Chief Justice Roberts were among those who declined to set aside the CDC's unlawful eviction moratorium. But in his brief concurring opinion, Justice Kavanaugh wrote, "The Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium." NCLA was first to file a lawsuit against the CDC moratorium, and the case is currently pending review in the Eleventh Circuit. It could also be the first to have a nationwide effect.
Read more about the case here: https://nclalegal.org/rick-brown-v-secretary-alex-azar-et-al-ncla-challenges-unlawful-cdc-order-that-leaves-landlords-powerless-to-evict-delinquent-tenants/
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SCOTUS Protects Property Rights Against Union Organizers
In a big property rights win, SCOTUS reversed the Ninth Circuit decision in Cedar Point Nursery v. Hassid and ruled in favor of the right to protect private property against intrusion by union organizers. The majority opinion was written by Chief Justice Roberts where he specified that California’s access regulation "grants labor organizations a right to invade the growers' property. It therefore constitutes a per se physical taking" without compensation.
Justices Defend Nonprofits from State-Sponsored Cancel Culture
SCOTUS also recognized the blatant abuse of administrative power by a series of California attorneys-general in Americans for Prosperity Foundation v. Bonta—the sixth amicus win for NCLA this term. Chief Justice Roberts held that the California Attorney General’s donor-disclosure policy for nonprofits—which began under Kamala Harris and continued under Xavier Becerra—is facially unconstitutional because it burdens donors' First Amendment Rights and is not narrowly tailored to an important government interest.
Read more about the case here: https://nclalegal.org/amicus-briefs-americans-for-prosperity-foundation-v-robert-bonta-attorney-general-of-california/
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NCLA Files Lawsuit to End SEC’s Lifetime Gag Orders
In this episode, Mark interviews NCLA Senior Litigation Counsel Peggy Little about her new SEC ‘gag order’ case.
NCLA filed a Motion for Relief from Judgment in the U.S. District Court for the Northern District of Texas on behalf of Mr. Novinger and ICAN Investment Group, LLC, challenging the constitutionality of the Securities and Exchange Commission (SEC) Gag Order that continues to hold them—and the truth—hostage. Mr. Novinger simply wants to speak candidly about SEC’s enforcement proceedings without facing the threat of a reopened prosecution.
In June 2016, Christopher Novinger and SEC reached a settlement of the agency’s claims that he and his company, ICAN Investment Group, LLC (ICAN), violated federal securities law. SEC required Mr. Novinger and ICAN to sign a consent order claiming that he had agreed to be bound forever by a Gag Order—an administrative tool meant to silence people with lifetime speech bans related to their prosecutions. For nearly 50 years, SEC has insisted that all people who settle their cases with the agency must agree to a gag that violates nearly every free speech doctrine.
The Gag Rule violates the First Amendment for a multitude of reasons: 1) it is a forbidden prior restraint on future speech; 2) it is a content-based restriction of speech; 3) it grants SEC unbridled enforcement discretion and silences Mr. Novinger in perpetuity; 4) it forbids truthful speech; 5) it unconstitutionally conditions settlement upon surrender of Americans’ inalienable rights of free speech; 6) it compels speech; and 7) it abridges Americans’ rights of petition long protected by the First Amendment. Any rule that racks up a list of constitutional violations this lengthy compels the conclusion that it could never have been a valid rule in the first place.
Read more about the case here: https://nclalegal.org/sec-v-novinger/
NCLA Revisits Potty-Mouthed Cheerleader Case after SCOTUS Ruling
Later in the episode, John and Mark discuss the “potty-mouthed cheerleader” Supreme Court case.
In 2017, Brandi Levy, a Pennsylvania high school student and junior varsity cheerleader, posted a message on Snapchat expressing her disappointment that she did not make the varsity cheerleading squad. While hanging out at a local convenience store, Levy snapped a picture of herself making a middle finger gesture with an expletive-ridden caption complaining about the school and the cheerleading squad. The coach saw this message and told Levy that she would be suspended from the team for the rest of the year. Levy did not simply accept her punishment; instead, she filed a federal lawsuit, Mahanoy v. B.L., alleging a violation of her First Amendment rights.
The Supreme Court held, this week, that Brandi Levy’s speech, while vulgar, did not contain features that would place it outside the First Amendment’s protection and that the school’s interest in discouraging vulgar language in the school community is diminished for off-campus speech. The social media post did not identify the school or target any member of the school community. In addition, the school did not demonstrate that her posts resulted in “substantial disruption” of a school activity or threatened the rights of others.
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SCOTUS Rules on FHFA’s Leadership Structure
In this episode, Mark discusses NCLA’s amicus win in the Supreme Court case Collins v. Yellen.
This week, a divided Supreme Court held that the structure of the Housing and Economic Recovery Act of 2008 violated the separation of powers. The law ran afoul of the Constitution by restricting the President’s power to remove the Director of the Federal Housing Finance Agency (FHFA). NCLA filed an amicus brief in September 2020 arguing that the FHFA Director’s protection from removal denied the President’s power to control the actions of Executive Branch officials.
In Justice Alito’s opinion for the Court, the judgment of the Fifth Circuit was affirmed under reasoning that the prohibition against independent agencies headed by a single official applies broadly. The Court fully endorsed last year’s holding in Seila Law LLC v. Consumer Financial Protection Bureau, which held that it was unconstitutional for the Director of CFPB to be insulated from presidential removal. As NCLA argued, virtually all the factors cited by Seila Law as reasons for concluding that CFPB’s structure ran afoul of separation-of-powers principles are fully applicable to FHFA’s structure: each is headed by a single Director who is appointed to a five-year term and may not be removed by the President before the end of that term except for cause.
Read more about the case here: https://nclalegal.org/collins-v-yellen/
SCOTUS Delivers Opinion on Appointments Clause Case
Later in the episode, Vec talks about NCLA’s amicus win in U.S. v. Arthrex, a Supreme Court case about administrative patent judges (APJs) and the Appointments Clause.
In a win against the Administrative State, a divided Supreme Court ruled that APJs have either been exceeding their proper authority or else have been appointed improperly. If granted unreviewable authority to invalidate existing patents, then APJs are “principal officers” who must be appointed by the President with the Senate’s advice and consent. APJs had previously been appointed by the U.S. Secretary of Commerce in violation of the Appointments Clause of the U.S. Constitution. In 2011 the America Invents Act (AIA) shifted adjudication of important property rights from the judiciary to bureaucrats not directly answerable to elected officials.
The Court’s opinion, written by Chief Justice Roberts, vacated the judgment of the U.S. Court of Appeals for the Federal Circuit. The Court held that APJs were not appointed to their positions in the manner Article II of the Constitution requires. The Court fixed the constitutional problem by striking a provision of the law that barred the Director of the Patent and Trademark Office from reviewing decisions issued by APJs.
Read more about the case here: https://nclalegal.org/united-states-v-arthrex-inc-et-al-united-states-v-polaris-innovations-ltd-et-al-smith-nephew-inc-and-arthrocare-corp-v-arthrex-inc-and-united-states/
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NCLA Files Appeal to Stop Gov. Murphy’s Rental Contract EO
In this episode, NCLA Litigation Counsel Jared McClain explains why New Jersey’s Executive Order on security deposits violates the Contracts Clause.
New Jersey Governor Phil Murphy chose economic winners and losers with Executive Order No. 128 (EO 128), an unconstitutional mandate that forces residential housing providers to credit tenants’ security deposits toward rent payments. NCLA filed its opening brief in Matthew Johnson, et al. v. Governor of New Jersey, et al. this week in the U.S. Court of Appeals for the Third Circuit, seeking a reversal of the trial court’s decision to grant the Governor’s motion to dismiss.
EO 128 nullifies the rights and obligations of housing providers and tenants who had mutually and voluntarily entered into contracts that explicitly prohibited the use of security deposits to pay rent. By waiving nonwaivable provisions of the Rent Security Deposit Act, a law governing security deposits for residential leases in New Jersey, the Governor violated the Contracts Clause of the U.S. Constitution. If the Contracts Clause is to retain any meaning at all, it must prevent state actions like EO 128 that significantly alter contractual terms.
Read more about the case here: https://nclalegal.org/matthew-johnson-et-al-v-governor-of-new-jersey-et-al/
NCLA Celebrates Supreme Court Amicus Win on Free Exercise of Religion
Later in the episode, Mark reports NCLA’s Supreme Court amicus win in Sharonell Fulton, et al. v. City of Philadelphia, et al., barring Philadelphia from excluding Catholic Social Services (CSS), a religious organization that has provided foster-care services through the City for more than 50 years.
This week, an unanimous Supreme Court ruled in favor of CSS and three affiliated foster parents in their lawsuit against the City of Philadelphia after being excluded from a foster-care program based on their religious beliefs. NCLA filed an amicus brief in June 2020 in support of the plaintiffs, arguing that the administrative process by which Philadelphia instituted its foster care policy is inherently tilted against religious Americans and that the City’s actions violated the Free Exercise Clause of the First Amendment.
In Chief Justice Roberts’s opinion for the Court, reversing the Third Circuit, he reasoned that Philadelphia’s policies “burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.”
NCLA’s amicus brief had primarily focused on two related concerns: (1) that the First Amendment fundamentally secures religious equality for Americans and protects them from unequal constraints that discriminate against individuals or organizations on account of their religious beliefs and practices; and (2) that administrative policymaking is inherently unequal and even prejudiced against religious individuals and groups.
Read more about the case here: https://nclalegal.org/amicus-brief-sharonell-fulton-et-al-v-city-of-philadelphia-et-al/
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Over-Regulation Strangles CA’s Retail Marijuana Sector
In this episode, Vec discusses the subsidy of California’s legal pot market because of over-regulation.
The California Legislature recently approved a $100-million plan to bolster the state’s legal marijuana industry, which continues to struggle to compete with the large illicit pot market nearly five years after voters approved sales for recreational use.
California’s legal recreational marijuana industry is so heavily taxed and regulated that the black market still dominates. Many cannabis growers, retailers, and manufacturers have struggled to make the transition from a provisional, temporary license to a permanent one renewed on an annual basis—a process that requires a costly, complicated, and time-consuming review of the negative environmental effects involved in a business and a plan for reducing those harms.
SCOTUS Ruling on First Step Act
Later in the episode, Vec talks about Terry v. United States and the Supreme Court’s textualist, unanimous ruling on the First Step Act.
In Terry v. United States, the Supreme Court unanimously ruled that people convicted of certain low-level crack cocaine offenses are not eligible for sentencing reductions under the First Step Act, a 2018 law that made some criminal-justice reforms retroactive.
Tarahrick Terry pleaded guilty in 2008 to possession with intent to distribute approximately 4 grams of crack cocaine. He was sentenced to nearly 16 years in prison. In 2010, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity between crack and powder cocaine. In 2018, Congress passed the First Step Act, which made certain provisions of the Fair Sentencing Act retroactive and allowed some people convicted under the old regime to seek reduced sentences.
Terry argued that he was entitled under the First Step Act to seek a sentencing reduction. The Court found that since Terry’s initial crack cocaine conviction did not trigger a mandatory minimum, it was not modified by the Fair Sentencing Act.
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NCLA Reacts to NLRB Brief in Ben Domenech Tweet Case
In this episode, Mark asks NCLA Litigation Counsel Adi Dynar about the National Labor Relations Board’s (NLRB) Third Circuit brief filed this week, which once again downplays the crucial jurisdiction arguments made by NCLA in FDRLST Media, LLC v. NLRB.
In its brief, NLRB called NCLA’s subject-matter and personal jurisdiction arguments immaterial. But NLRB cannot ignore U.S. Supreme Court precedent. The First Amendment does not become optional every time NLRB chooses to make it optional.
NCLA is asking the U.S. Court of Appeals for the Third Circuit to reverse the flawed ruling of NLRB from last November, which concluded that a satirical tweet posted by FDRLST co-founder and publisher Ben Domenech on his private account constituted an unfair labor practice by his employer. FDRLST Media, the publisher of the online magazine The Federalist, is fighting back because NLRB has neither subject-matter jurisdiction over this case nor personal jurisdiction over the company.
Read more about the case here: https://nclalegal.org/joel-f-v-fdrlst-media-llc/
Interior’s Proposed Rule Creates Criminal Liability for Incidental Bird Deaths
Later in the episode, Mark explains NCLA’s opposition to the U.S. Fish and Wildlife Service’s (FWS) ‘incidental take’ rule for migratory birds.
Any activity resulting in the incidental death of migratory birds would be considered a crime under a proposed rule by FWS. The rule, Regulations Governing Take of Migratory Birds, repeals a Trump Administration final rule which correctly defines the scope of the Migratory Bird Treaty Act (MBTA), as Congress did, to exclude criminal liability for the incidental death of migratory birds.
NCLA filed comments objecting to the proposed rule, which greatly expands the interpretation of the MBTA so as to grant the Department of Justice the discretion to prosecute all actions that have the mere effect of killing migratory birds. According to FWS’s new position, any activity that unintentionally causes the death of a migratory bird—such as running into a bird while driving or a windmill blade striking a bird—is a crime. Individuals must rely on the grace of the federal government to avoid being prosecuted.
The MBTA, first passed in 1918, was created to ensure the sustainability of populations of migratory bird species. It protects more than 1,000 bird species in the U.S. The MBTA focuses exclusively on actions that kill or directly harm protected migratory birds. The statute declares that 22 specifically listed activities regarding migratory birds are flatly unlawful. The words in the listed activities share a common theme: all of them prohibit activity intentionally directed at migratory birds. Not included anywhere in the MBTA’s list of prohibited activities is the phrase “incidental take.”
Read more about the comments here: https://nclalegal.org/comments-in-response-to-the-fish-and-wildlife-services-proposed-rule-regulations-governing-take-of-migratory-birds/
See omnystudio.com/listener for privacy information.
Breaking down the Supreme Court’s Decision in Caniglia v. Strom
In this episode, Vec discusses the Supreme Court’s opinion in Caniglia v. Strom, barring police from seizing guns without a warrant.
The Supreme Court unanimously held that law enforcement cannot legally enter homes without a warrant even in cases where doing so may benefit the public interest.
Judge Grants Class-Action Status in Mexican Gulf Lawsuit
Later in the episode, Vec celebrates the grant of class-action status to Mexican Gulf charter boat captains in Mexican Gulf Fishing Company, et al. v. Department of Commerce, et al.
The U.S. District Court for the Eastern District of Louisiana granted NCLA’s motion for class certification this week and accepted an amended complaint in Mexican Gulf Fishing Company, et al. v. National Oceanic and Atmospheric Administration, et al. The ruling ensures that all members of the class will benefit from the district court’s rulings on these privacy issues.
In July 2020, the National Oceanic and Atmospheric Administration (NOAA), the National Marine Fisheries Service (NMFS), and the U.S. Department of Commerce published a Final Rule requiring Gulf for-hire vessel owners to submit electronic fishing reports “using hardware and software approved by NMFS.” The plaintiffs, charter boat captains and companies that take customers fishing and sightseeing off the coasts of Alabama, Florida, Louisiana, Mississippi, and Texas, say that the rule is the regulatory equivalent of an “ankle bracelet” (or anchor bracelet!) that constantly monitors their businesses and personal lives.
The Final Rule mandates that charter boat captains pay for and “permanently affix” a Vessel Monitoring System (VMS) and allow the tracking device to relay and store information at all times. Each captain must contact NMFS every time the vessel leaves port—even if just crossing the bay for dinner.
Read more about the case here: https://nclalegal.org/mexican-gulf-fishing-company-et-al-v-national-oceanic-and-atmospheric-administration-et-al/
See omnystudio.com/listener for privacy information.
President Biden’s Federal Land Grab
In this episode, guest host Harriet Hageman critiques President Biden’s plan to put 30% of U.S. land area under federal control by 2030.
On January 27, 2021, President Biden signed Executive Order 14008, Tackling the Climate Crisis at Home and Abroad. The Order sets forth the Biden administration’s policies to address climate change. But the “30 by 30” plan within the Order is raising concerns for many farmers and ranchers nationwide.
The “30 by 30” plan is a scheme to put 30% of U.S. land area under federal control by 2030. According to the U.S. Geological Survey, right now, about 12-percent of the land in the U.S. is in conservation. Within the next 10 years, the federal government hopes to transition nearly 440 million acres into federal protection.To achieve the 30% conservation goal some agricultural land could be impacted, including privately-owned land.
The question for landowners, is will they be forced to conserve their land?
The Limits on Emergency Use Authorization Vaccines
Later in the episode, Mark explains the limits on Emergency Use Authorization vaccines and why mandating their use for everyone is not wise.
Covid-19 vaccines have been approved only pursuant to an Emergency Use Authorization (EUA). In granting authorization for emergency use, the FDA concluded that the known benefits outweigh the known risks after a few months of clinical trials. The standard is much higher for medical products to receive full FDA approval. In order to obtain such approval, a vaccine must be rigorously tested and monitored for an extended time period. Crucially, the EUA statute mandates that potential recipients be informed of the risks and benefits and that they have the option to accept or refuse the treatment.
See omnystudio.com/listener for privacy information.
The Challenge Against ATFs Ban on Bumpstocks
NCLA’s Harriet Hageman joins the podcast as a guest host and interviews Litigation Counsel Caleb Kruckenberg about the latest in our challenge against ATFs bump stock ban.
NCLA recently filed a reply brief in Cargill v. Garland, et al. in the United States Court of Appeals for the Fifth Circuit, seeking to overturn the federal ban on bump stocks and to halt its enforcement. NCLA contends that only Congress, not an administrative agency like the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), can write criminal laws such as the ban on bump stocks.
The Bump Stock Final Rule became effective on March 26, 2019, and some 520,000 bump stock owners nationwide are subject to a 10-year prison sentence unless they destroy or surrender the devices. NCLA represents Austin, Texas resident and gun enthusiast Michael Cargill. Mr. Cargill surrendered two bump stocks to the Austin ATF Field Office in accordance with the ban. This case was the first challenge to ATF’s bump stock ban to go to trial last September.
NCLA also represents W. Clark Aposhian, a resident of Salt Lake City, Utah, in another lawsuit challenging the ban. In March, the U.S. Court of Appeals for the Tenth Circuit, sitting en banc, voted 6-5 against Mr. Aposhian. NCLA plans on filing a petition for a writ of certiorari with the U.S. Supreme Court in Aposhian v. Wilkinson, et al.
Read more about the Cargill case here: https://nclalegal.org/cargill-v-garland/
Read more about the Aposhian case here: https://nclalegal.org/aposhian-v-wilkinson/
Coral Gables Tracks Every Move You Make Behind the Wheel
Later in the episode, Mark and Caleb provide an update on NCLA’s case against Automated License Plate Readers (ALPR) in the City of Coral Gables, FL.
This week, NCLA filed two motions for summary judgment asking a judge in Florida’s 11th Judicial Circuit to rule against Coral Gables and the Florida Department of Law Enforcement (FDLE) over their warrantless collection of personal data in violation of client Raul Mas Canosa’s right to privacy under the constitutions of the State of Florida and the United States.
Mr. Mas Canosa, a resident of Coral Gables, was alarmed when he received 80 pages of documents from the city tracking his vehicle’s movements using Automated License Plate Readers (ALPRs) installed around the city.
The images, captured over a 5-month period, show Mr. Mas Canosa going to the supermarket, to the dry cleaner, to doctors’ appointments, to a meeting with a client, to a city commission meeting, and to various other locations across the city. There are 18 ALPR devices located at major intersections and other strategic points throughout Coral Gables. The locations form a perimeter around the city and were selected to encompass the most traffic possible so the system would maximize surveillance potential. These cameras take pictures of license plates 24 hours a day, seven days a week and then store that data for a period of three years. The information gathered by the ALPRs is searchable and available to 68 different law enforcement agencies, including the FBI.
The Supreme Court held in Carpenter v. United States that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through” digital surveillance. Coral Gables’s ALPR system unlawfully aggregates data about Mr. Mas Canosa’s movements over time and impermissibly shares that data with law enforcement without any particularized suspicion.
Read more about the case here: https://nclalegal.org/coral-gables/
See omnystudio.com/listener for privacy information.
NCLA Announces King George III Prize Winner
In this episode, Mark and Clegg Ivey announce the King George III Prize winner for worst civil liberties offender at the state level.
NCLA previously announced that the Centers for Disease Control and Prevention had won the “Georgie” for worst federal abuser on account of its blatantly unconstitutional eviction moratorium. No surprise, the contenders for the state-level King George III Prize are the same governors we profiled during this year’s and last year’s Governors Gone Wild event.
Read more about the King George III Prize here: https://nclalegal.org/king-george-iii-prize/
Watch this year’s Governor’s Gone Wild here: https://youtu.be/Mwr08HkR7Dk?t=1
Watch last year’s Governors Gone Wild here: https://youtu.be/AlVRLoW_jt8?t=1
Biden Administration Eliminates Fair Adjudication Rights
Later in the episode, Mark and Sheng Li discuss NCLA’s case against the Department of Transportation (DOT) over the Biden Administration eliminating fair adjudication rights.
NCLA’s lawsuit was filed in the U.S. District Court for the Northern District of Texas on behalf of the Institute for Hazardous Materials Packaging and Certification Testing, Inc. (IHMPACT). It argues that once substantive rights are extended, no federal agency may lawfully take them away by fiat. DOT would have to conduct notice-and-comment rulemaking to repeal the rules.
On April 2, 2021, Buttigieg arbitrarily rescinded DOT’s binding rules, which recognized a comprehensive set of rights, including a new mandate that DOT personnel voluntarily disclose all exculpatory evidence to those targeted by a civil enforcement action.
Buttigieg seemingly revoked DOT’s due process rules to comply with President Biden’s “Day One” Executive Order demanding that agencies “rescind any orders, rules regulations, guidelines or policies” that supposedly inhibit the federal government’s ability to address “the coronavirus disease 2019 pandemic, economic recovery, racial justice, and climate change.” But Buttigieg did not explain why or how affording due process might “threaten” DOT’s response to these issues. Buttigieg revoked the rules without allowing IHMPACT or the public to comment beforehand, and he did so without considering IHMPACT members’ reliance interests, even though Congress and Supreme Court precedent require it.
Read more about the case here: https://nclalegal.org/institute-for-hazardous-materials-packaging-and-certification-testing-inc-ihmpact-v-peter-paul-montgomery-buttigieg-et-al/
See omnystudio.com/listener for privacy information.
The Potty-Mouthed Cheerleader Reaches Supreme Court
In this episode, Vec explains what’s going on in the potty-mouthed cheerleader Supreme Court case.
In 2017, Brandi Levy, a Pennsylvania high school student and junior varsity cheerleader, posted a message on Snapchat expressing her disappointment that she did not make the varsity cheerleading squad. While hanging out at a local convenience store, Levy snapped a picture of herself making a middle finger gesture with an expletive-ridden caption complaining about the school and the cheerleading squad. The coach saw this message and told Levy that she would be suspended from the team for the rest of the year. Levy did not simply accept her punishment; instead, she filed a federal lawsuit alleging a violation of her First Amendment rights.
The American Civil Liberties Union, representing Levy, has argued that students need protection from censorship and monitoring of their beliefs.
The Supreme Court took up Levy’s case to decide whether public schools can actually abridge their students’ free expression beyond the schoolhouse gate. The Court’s ruling is expected by the end of June and could clarify the limits of an important 1969 Supreme Court precedent that let public schools punish student speech when it would “substantially disrupt” a school community. The case could impact the free speech rights of America’s 50 million public school students.
Congress Tries to Steal State Taxing Powers
Later in the episode, Mark talks about NCLA’s amicus brief filed in State of Ohio v. United States Department of the Treasury, et al., a case challenging federal control of state taxation.
Never before in the history of the United States has Congress conditioned the receipt of federal funds on state governments surrendering inherent and core sovereign taxing powers. The American Rescue Plan Act of 2021 (ARPA), enacted on March 11, 2021, includes a constitutionally alarming provision—the “Tax Cut Ban”—which impermissibly seizes taxing authority from every state. NCLA’s amicus brief, filed in the U.S. District Court for the Southern District of Ohio, argues that the ambiguity at the heart of ARPA cannot be cured by the Department of Treasury’s new guidance seeking to clarify the parameters of the Tax Cut Ban.
Read more about the amicus brief here: https://nclalegal.org/amicus-brief-state-of-ohio-v-united-states-department-of-the-treasury-et-al/
See omnystudio.com/listener for privacy information.
NCLA Challenges New Dept. of Education Proposed Priorities
In this episode, Mark discusses NCLA comments objecting to the Department of Education’s “Proposed Priorities – American History and Civics Education,” published April 19, 2021, which would change the way American history is taught in all public schools. The Proposed Priorities would fund “the development of culturally responsive teaching,” a phrase followed by references to Critical Race Theory, the 1619 Project, and the publication and views of Ibram X. Kendi. Regardless of any substantive objections to such curricula, the Proposed Priorities are impermissible because they exceed the agency’s statutory authority.
NCLA argues that the Proposed Priorities conflict with both the policy and the language of the statutes governing the federal Department of Education’s relationship with local educational authorities, and thus they should be revoked. The Department of Education has the power to act only to the extent Congress has authorized it. Congress alone can expand an agency’s power. The Proposed Priorities exceed the Department of Education’s statutory grant of authority by attempting to exercise an authority and influence over curricula that was never conferred. In fact, Congress expressly withheld the ability to influence curricula from the agency’s powers.
Read more here: https://nclalegal.org/2021/05/ncla-warns-u-s-dept-of-education-that-its-effort-to-influence-curricular-priorities-is-unlawful/
SCOTUS Decision in CIC v. IRS
Later in the episode, Vec discusses the case CIC Services, LLC v. Internal Revenue Service. A case that asks whether the Anti-Injunction Act’s (AIA) bar on lawsuits for the purpose of restraining the assessment or collection of taxes also bars challenges to unlawful regulatory mandates issued by administrative agencies that are not taxes.
The Supreme Court on May 17th ruled unanimously to reverse the judgment of the Sixth Circuit and sent the case back for further proceedings.
This decision applies to NCLA’s lawsuit against the IRS, James Harper v. Charles P. Rettig, et al. The U.S. District Court for the District of New Hampshire tossed the case in March 2021 under a theory that the AIA bars suits over “the assessment or collection of any tax.” Only this case is not about collecting taxes. Mr. Harper’s lawsuit instead challenges IRS’s violation of his constitutional rights.
In CIC Services, LLC v. IRS, the Court held that the AIA does not bar suits like Mr. Harper’s that do not challenge tax assessment or collection, but rather the IRS’s unconstitutional and intrusive information-gathering practices.
See omnystudio.com/listener for privacy information.
NCLA Asks KY Supreme Court to Uphold Constitutional Governance
In this episode, Vec discusses the recent joint amicus brief that NCLA filed in Beshear, et al. v. Goodwood Brewing Co., LLC, et al. NCLA criticizes Kentucky Governor Andy Beshear’s attempt to bypass the Kentucky Legislature and hold onto temporary executive powers.
In January 2021, the legislature voted to limit Governor Beshear’s emergency powers used to address the Covid-19 pandemic. The governor vetoed the bill to limit his powers, and the legislature overrode that veto with the required majority. The governor then resisted the legislature’s lawful withdrawal of power by filing a lawsuit to enjoin the new law as a violation of his executive powers. This lawsuit was brought to enforce the new law. Both sides won their respective lawsuits at the trial court level, which set up a conflict for the state supreme court to resolve.
Read more about the amicus brief here: https://nclalegal.org/amicus-brief-beshear-et-al-v-goodwood-brewing-co-llc-et-al/
PA Voters Curtail Gov. Wolf’s Emergency Powers
Later in the episode, Mark talks about a recent referendum in which Pennsylvania voters cut back the Governor’s emergency powers.
Pennsylvania voters became the first in the nation to curb their governor’s emergency powers, approving constitutional amendments proposed by Republican lawmakers over Democrat Governor Tom Wolf’s handling of the COVID-19 outbreak.
Approximately 54% of voters backed amending the state constitution to allow a simple majority of lawmakers to terminate a disaster declaration at any time. Currently, such a declaration can only be ended with the governor’s consent or with support from two-thirds of the General Assembly.
Governor Wolf was one of the contestants in NCLA’s King George III Prize competition which can be found here: https://nclalegal.org/king-george-iii-prize/
See omnystudio.com/listener for privacy information.
NCLA Reps The Daily Wire Against NLRB
In this episode, Mark announces that NCLA represented The Daily Wire and persuaded NLRB not to pursue charges over Ben Shapiro’s tweet.
In a victory for social media users everywhere, the National Labor Relations Board (NLRB) has cleared Ben Shapiro, Co-Founder and Editor Emeritus of The Daily Wire, of a meritless charge. A random Twitter user had claimed that Mr. Shapiro violated the National Labor Relations Act (NLRA) when he posted a satirical tweet about a current news event. NCLA successfully defended The Daily Wire, LLC during pre-complaint investigations conducted by NLRB, resulting in a dismissal of the charge. NCLA commends NLRB for refusing to validate claims of wrongdoing by random individuals who were not “aggrieved” by the alleged unfair labor practice.
CFPB Forces Home Providers to Lie to Tenants
Vec updates the audience on NCLA's lawsuit, The Property Management Connection, LLC, et al. v. Dave Uejio, Consumer Financial Protection Bureau, et al.
CFPB is requiring that anyone who seeks to collect unpaid residential rent, including property management companies, real estate attorneys, or housing providers, must now lie to tenants who have been sued for unpaid rent and are subject to eviction.
NCLA filed a lawsuit and motion for temporary restraining order against CFPB in the U.S. District Court for the Middle District of Tennessee for doubling down on the unlawful Halt Order issued by the Centers for Disease Control and Prevention (CDC) last September.
Read more about the case here.
See omnystudio.com/listener for privacy information.
Why Federalizing Voting Rights is a Mistake
In this episode, Vec discusses HR1, the bill to federalize voting rights, and why exclusive DC Circuit oversight of the law would be a mistake.
H.R.1 would federalize the election process and impose unnecessary, unwise, and unconstitutional mandates on the states. The bill represents an extraordinary federal power grab. States would be forced to offer no-excuses mail ballots. They’d have to count votes straggling in 10 days late, provided the postmarks were stamped Election Day. They’d have to set up same-day registration and couldn’t withhold ballots from felons, except those imprisoned.
It makes federal election law more complex, thus creating a chilling effect on political communication through sheer uncertainty and confusion.
NCLA Asks SCOTUS to Hear Desrosiers v. Baker
Later in the episode, Mark explains NCLA’s newest cert petition to the U.S. Supreme Court in Desrosiers v. Baker, against Massachusetts Governor Charlie Baker’s state of emergency and pandemic executive orders.
Despite the greatly improved disease and risk environment since the COVID-19 national emergency was declared fourteen months ago, Massachusetts Governor Charlie Baker’s state of emergency remains in effect today. NCLA filed a petition for a writ of certiorari with the U.S. Supreme Court in Dawn Desrosiers, et al. v. Governor Charles D. Baker, asking the Justices to review the Massachusetts Supreme Judicial Court’s December 2020 ruling that decided the Governor’s restrictions are reasonable and do not violate the plaintiffs’ federal constitutional rights.
Read more about this case here.
See omnystudio.com/listener for privacy information.
The Latest Case to Overrule the CDC’s Eviction Moratorium
A federal judge on May 5th struck down the nationwide halt on evictions, reasoning that the CDC overstepped its authority.
“It is the role of the political branches, and not the courts, to assess the merits of policy measures designed to combat the spread of disease, even during a global pandemic,” U.S. District Judge Dabney Friedrich wrote. “The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.”
Mark and Vec discuss this decision and the impact it could have on NCLA’s litigation against the CDC’s unlawful eviction moratorium.
CFPB Doubles Down on CDC Order
Later in the episode, Vec explains his new case, The Property Management Connection, LLC, et al. v. Dave Uejio, Consumer Financial Protection Bureau, et al.
The Consumer Financial Protection Bureau (CFPB) is requiring that anyone who seeks to collect unpaid residential rent, including property management companies, real estate attorneys, or housing providers, must now lie to tenants who have been sued for unpaid rent and are subject to eviction.
NCLA filed a lawsuit and motion for temporary restraining order against CFPB in the U.S. District Court for the Middle District of Tennessee for doubling down on the unlawful Halt Order issued by the Centers for Disease Control and Prevention (CDC) last September. NCLA represents The Property Management Connection LLC, attorney Gordon Schoeffler, and the National Association of Residential Property Managers. Each Plaintiff suffered significant economic damages after CDC issued its Order, which forced property owners to provide habitable housing for tenants while continuing to pay maintenance, utilities, and other expenses, but prevented them from requiring tenants to pay their rent.
Read more about the case here.
See omnystudio.com/listener for privacy information.
JMU Title IX Lacks Due Process
In this episode, Mark and Vec discuss NCLA’s newest lawsuit against James Madison University (JMU) and the Department of Education.
NCLA filed a complaint in the U.S. District Court for the Western District of Virginia against JMU and the Dept. of Education on behalf of Alyssa Reid. NCLA also released a video outlining the case of Ms. Reid, a former employee in the JMU School of Communication Studies. Sadly, Alyssa’s saga provides yet another example of how Title IX has been hijacked and weaponized to exact revenge for a bad breakup. NCLA’s complaint argues that the actions of JMU, assisted by the Dept. of Education, deprived Ms. Reid of her rights and entitlements as protected by the constitutions of both the United States and the Commonwealth of Virginia, as well as by Title IX itself.
Read more about the case here.
BOP Ordered to Send Inmates Back to Prison
Later in the episode, Mark asks if the Bureau of Prisons must send people back to prison when they were earlier released to home confinement due to COVID-19?
Last March, Congress authorized the Justice Department to declare an emergency that would expand the pool of low-level, non-violent federal inmates who could qualify for home confinement, in an effort to contain COVID-19’s spread throughout the federal prison system.
In January, however, the department issued a legal opinion that once the emergency is lifted, the Bureau of Prisons will have no choice but to “recall prisoners in home confinement to correctional facilities” because the authority to send more people home was only temporary.
See omnystudio.com/listener for privacy information.
Aftermath of AMG v. FTC
On April 22nd, the United States Supreme Court handed down a unanimous decision in AMG Capital Management, LLC, et al. v. Federal Trade Commission. The Court declared that section 13(b) of the Federal Trade Commission Act does not authorize the Federal Trade Commission (FTC) “to seek…equitable monetary relief such as restitution or disgorgement.”
In response to this decision Acting Chairwoman Rebecca Kelly Slaughter said, “In AMG Capital, the Supreme Court ruled in favor of scam artists and dishonest corporations, leaving average Americans to pay for illegal behavior.”
In this episode, Vec responds to the FTC’s reaction to their loss in AMG v. FTC.
Congress Seizes State Taxing Authority
Later in the episode, Mark discusses a group of 13 states including Florida, West Virginia and Alaska that have sued the U.S. Treasury Department over a provision in the American Rescue Plan Act of 2021 that prohibits states from using federal funds for state tax cuts.
West Virginia et al. v. U.S. Department of the Treasury et al. addresses the federal provision that prohibits states from using the recent $350 billion cash infusion to states and localities if they "directly or indirectly offset … [states'] net tax revenue" via state laws, regulations or through rate cuts, rebates, deductions, credits "or otherwise." States that don't comply with the provisions would be required to repay funds equal to the amount of tax cuts they gave.
See omnystudio.com/listener for privacy information.
Executive fiat has become the lawmaking method of choice in Biden's first 100 days. In this episode, Mark and Vec discuss Biden's first 100 days and the executive orders he’s signed.
As of April 29, Biden had issued 41 executive orders, more than twice the number issued by either Obama (19) or Bush (11), and two-thirds more than Trump (25). Counting other unilateral executive actions, but excluding mostly symbolic actions like declaring a National Agriculture Day, Biden issued 64 compared to 54, 41, and 20 for Trump, Obama, and Bush, respectively.
NCLA has launched a database in response to the unprecedented amount of unlawful administrative power that the White House is generating. Check out our new webpage, “Dazed and Abused: Biden’s 100-day Avalanche of Administrative Abuses.”
See omnystudio.com/listener for privacy information.
New CFPB Rule Strengthens Unlawful Eviction Moratorium
In this episode, Vec criticizes the new Consumer Financial Protection Bureau (CFPB) eviction rules for landlords. On April 19th, CFPB issued an interim final rule strengthening tenant protections under the Fair Debt Collection Practices Act (“FDCPA”), in support of the Centers for Disease Control and Prevention’s (CDC) COVID-19-related eviction moratorium.
The rule requires debt collectors to provide to tenants who may have rights under the eviction moratorium a written notice of those rights concurrent with an eviction notice or on the date that an eviction action is filed, and clarifies that notice given over the phone or by electronic means such as text or email is insufficient.
NCLA filed several lawsuits across the country challenging CDC’s unlawful eviction moratorium and similar government edicts. NCLA filed a class-action lawsuit, Mossman v. CDC, in the U.S. District Court for the Northern District of Iowa. The case Brown v. CDC is on appeal in the U.S. of Appeals for the Eleventh Circuit. The cases Johnson v. Murphy and Kravitz v. Murphy challenge New Jersey Governor Murphy’s abuse of power in issuing Executive Order No. 128, which unilaterally forces residential housing providers to use their tenants’ security deposits towards rent payments and criminalizes adherence to existing contracts.
Arizona DCS Ruins Man’s Reputation Before Due Process
Later in the episode, Mark discusses NCLA’s Arizona Court of Appeals case in Phillip B. v. Faust. NCLA filed a reply brief this week in the Arizona Court of Appeals which challenges the Maricopa County Superior Court’s decision allowing the Arizona Department of Child Safety (DCS) to overrule factual findings and credibility determinations made by an independent administrative law judge (ALJ). DCS’s unjust decision placed NCLA client Phillip B. (whose name has been redacted to preserve his anonymity under court rules) on the DCS Central Registry of child abusers for 25 years, destroying his reputation and career.
After taking live testimony, the ALJ did not find probable cause to support the accusations of alleged child abuse against Mr. B. But state law allowed DCS to appeal the ALJ’s decision to its own Director, who in July 2019, disregarded due process and rejected the findings of the ALJ, adopting his own agency’s unsupported and unproven version of events. Acting as prosecutor, judge, and jury, then-director of DCS, Greg McKay, decided unilaterally that the charges against Mr. B. were ‘substantiated.’
For 27 years, Phillip B. has been a coach, school teacher, and group-home caregiver for troubled teens. In 2018, Mr. B. was falsely accused of child abuse by one of the teens in a group home. After a two-day trial, the ALJ found that Mr. B. committed no abuse when he placed his hand on the upset teenager’s shoulder to calm him down.
Director McKay rewrote the ALJ’s facts and applied an unconstitutional standard of proof that deviated from DCS’s own regulations. Additionally, Director McKay carried out his own decision without waiting for the court process to commence, much less conclude.
The Court should reverse and vacate the DCS Director’s and the Superior Court’s decisions, and follow the initial conclusion of the neutral ALJ, who deemed the allegations against Mr. B. baseless. In addition, the Court of Appeals should require DCS to accord due process before placing anyone’s name in the Central Registry in the future.
Read more about the case here: https://nclalegal.org/2021/04/ncla-asks-az-court-of-appeals-to-require-due-process-before-dcs-adds-names-to-central-registry/
See omnystudio.com/listener for privacy information.
Carr v. Saul
In this episode, Mark discusses NCLA’s amicus win at SCOTUS in Carr v. Saul. The U.S. Supreme Court unanimously held that the lower courts erred in imposing an issue-exhaustion requirement on Social Security disability claimants. In Carr v. Saul, claimants challenged a judge-made version of the administrative exhaustion rule, a requirement that litigants at an administrative hearing must raise any legal arguments in support of their claim at each step of the administrative process or forfeit those arguments on appeal. NCLA and the Cato Institute filed a joint amicus brief arguing that imposing issue exhaustion requirements is inappropriate when the issue does not depend on an agency’s discretion, expertise, or fact-finding.
In Justice Sotomayor’s opinion for the Court, the judgments of the Eighth and Tenth Circuit Courts of Appeal were reversed under the reasoning that petitioners could not have developed their Appointments Clause challenges in the Social Security Administration (SSA) administrative law judge (ALJ) proceedings given that: (1) the proceedings were non-adversarial; and (2)(a) the structural constitutional claims at issue were ill suited for agency adjudication because they fell outside the agency’s expertise; and (b) raising them would have been futile since the SSA ALJ could not have granted the claimants their requested relief.
NCLA’s amicus briefs in Lucia v. SEC and now Carr aim to ensure that agency adjudicators must afford people their constitutionally guaranteed rights. The Court’s decision in Carr makes certain that Article III courts will serve as a constitutional backstop and step in to enforce the Constitution when agencies can’t or won’t.
Read more about the decision here: https://nclalegal.org/2021/04/in-victory-for-ncla-supreme-court-unanimously-rejects-issue-exhaustion-requirement-before-alj/
AMG v. FTC
Later in the episode, Vec talks about NCLA’s second SCOTUS victory of the week in AMG Capital Management, LLC, et al. v. Federal Trade Commission. Justice Stephen Breyer handed down a unanimous decision declaring that section 13(b) of the Federal Trade Commission Act does not authorize the Federal Trade Commission (FTC) “to seek, or a court to award, equitable monetary relief such as restitution or disgorgement.”
Section 13(b) of the Federal Trade Commission Act strictly authorizes the Commission to obtain, “in proper cases,” a “permanent injunction” in federal court against “any person, partnership, or corporation” that it believes “is violating, or is about to violate, any provision of law” that the Commission enforces. But the FTC had transformed its limited statutory right to enjoin present or future unlawful conduct into a near-absolute right to secure any “equitable remedy” for past damages under Section 13(b). NCLA’s successful amicus brief admonished FTC for its unlawful practice of applying the agency’s statutory provisions in an unauthorized way to avoid the due process protections for monetary remedies Congress provided in the FTC Act.
NCLA commends the Court for rejecting the FTC’s arguments and for restoring the limits Congress imposed on the agency.
Read more about the decision here: https://nclalegal.org/2021/04/ncla-celebrates-scotus-win-rejecting-ftc-power-grab-and-restoring-limits-on-rogue-agency/
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Biden’s Pistol Brace EO
In this episode, Vec discusses Biden’s new executive actions on firearms that target ghost guns, red flag laws, and pistol-stabilizing braces. Biden has called on the Department of Justice to issue proposed rules to stop the proliferation of so-called “ghost guns” within 30 days. In addition, within 60 days, DOJ will issue a proposed rule that will require firearms equipped with “pistol stabilizing braces” to be registered as Short-Barreled Rifles (SBRs) subject to the requirements of the National Firearms Act.
President Biden has said the brace makes the pistol more lethal and “a hell of a lot more accurate.”
In the cases Aposhian v. Wilkinson, et al. and Michael Cargill v. Garland, et al., NCLA represents gun owners who filed lawsuits against the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), seeking to overturn the federal ban on bump stocks and to halt its enforcement. NCLA argues that the ATF rule banning bump stocks exceeds the agency’s legal authority. Pistol stabilizing braces and bump stock devices are both aftermarket gun accessories.
Read more about the cases here: https://nclalegal.org/aposhian-v-wilkinson/; https://nclalegal.org/cargill-v-garland/
Commercial Speech and Credit Card Surcharges
Later in the episode, Mark reviews a recent commercial speech decision out of the U.S. District Court, District of Kansas, on credit card surcharges. Since 2013, U.S. merchants have been allowed to impose a surcharge on consumers who pay for goods or services with a credit card. Some states, like Kansas, have enacted statutes prohibiting or restricting merchants from surcharging customers who elect to pay via credit card. The U.S. District Court, District of Kansas, ruled in CardX, LLC v. Schmidt that the Kansas statute which prohibits the credit card surcharge violated the First Amendment rights of a payment processing technology company but limited the scope of its ruling to the plaintiff technology company.
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The Court-Packing Blitz
In this episode, Vec reacts to recent news that Democrat lawmakers are preparing to unveil legislation that would add four seats to the U.S. Supreme Court, a move that could harm the rule of law in the U.S. This comes on the heels of an executive order, signed by President Biden last week, that establishes a 36-member commission to report back within six months on possible changes to the Supreme Court’s membership, jurisdiction, and lifetime terms.
The legislation will have slim hopes of passage, with Republicans united in opposition to any effort that would upset the balance of the court, and even many Democrats reluctant to prejudge the issue while President Biden’s commission is at work.
The work of the commission and the pressure campaign from judicial activists could, however, be intended as a shot across the bow to influence the deliberations of the Supreme Court. The proposals to apply term limits or adding justices to the Supreme Court would require a constitutional amendment. The judiciary should remain independent.
Supreme Court justices are appointed by the president rather than elected by the people, and once confirmed by the Senate, they owe no allegiance to any person or party. Their only allegiance is to the Constitution. The president can’t replace them at will like a political appointee; justices can only be replaced when they retire, die, or are impeached and removed from office for cause.
Justice Thomas on Big Tech and the First Amendment
Later in the episode, Mark dissects Justice Thomas’s latest concurring opinion in Biden v. Knight First Amendment Institute at Columbia University, a lawsuit in which a lawyer alleged President Trump violated the Constitution in blocking this individual from @realdonaldjtrump on Twitter. The case was dismissed as moot by the U.S. Supreme Court on April 5th.
Justice Thomas points out that “public forum” law does not fit well with online platforms. He then outlines two other doctrines that have a long legal history of application to private businesses: “common-carrier law” and “public accommodation law.”
Justice Thomas, concurring: “The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him. But if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions. This petition, unfortunately, affords us no opportunity to confront them.”
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Beckett Win and Gov. Murphy's EO 128
Vec and Mark discuss the recent win for Beckett and religious liberty in Archbishop of Washington v. Bowser.
On December 16, 2020, Mayor Bowser signed an updated order that raised the cap to 250 persons so that the Archdiocese’s churches could open their doors to many more parishioners on Christmas Day. On March 25, 2021, a federal judge ruled against D.C.’s arbitrary caps, allowing the Basilica and other Catholic churches in the Archdiocese to welcome as many of their parishioners as could safely attend Easter services.
The two also discuss NCLA's recent legal action in Kravitz v. Murphy.
The lawsuit challenges Governor Murphy’s Executive Order No. 128 (EO 128), an unconstitutional mandate that unilaterally forces residential housing providers to use their tenants’ security deposits toward rent payments and criminalizes adherence to existing contracts. The order undermines property rights by suspending existing laws governing residential leasehold contracts and depriving property owners of security against property damage caused by tenants.
NCLA represents small property owners who have fallen victim to Governor Murphy’s unlawful order. The appellants in this case are ordinary people who are also struggling financially as a result of the pandemic. Without the contractually required security deposits, these housing providers are now forced to cover the costs of any tenant-caused property damage out of their own pockets rather than using the restitution guaranteed in the contracts they signed. In one instance, a landlord has been unable to track down former tenants who caused over $1,800 worth of damage to his rental property.
Read more about the case here: https://nclalegal.org/2021/04/eo-128-ncla-asks-nj-appellate-court-to-halt-governors-unlawful-interference-with-rental-contracts/
Show me the Money! NCAA v. Alston
Later in the episode, Vec and Mark review the oral argument made before the Supreme Court in NCAA v. Alston on whether college athletes can be paid.
The case before the court was filed as a class action against the NCAA and the major athletic conferences in 2014, arguing that the NCAA’s restrictions on eligibility and compensation violate federal antitrust laws by barring the athletes from receiving fair-market compensation for their labor. A federal district court in California ruled that the NCAA could restrict benefits that are unrelated to education (such as cash salaries), but it prohibited the NCAA from limiting education-related benefits (such as free laptops or paid post-graduate internships). The U.S. Court of Appeals for the 9th Circuit upheld that decision, setting the stage for the Supreme Court’s review in NCAA v. Alston.
Justice Samuel Alito suggested that the circumstances of major-college athletics “paint a pretty stark picture” in which powerhouse programs bring in billions of dollars and pay enormous salaries to coaches, but the athletes themselves put in long hours of training, at significant cost to their studies, resulting in “shockingly low” graduation rates. The athletes, Alito concluded, are “recruited, they’re used up, and then they’re cast aside.”
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The Peril of Politics in Court
In this episode, Vec discusses Supreme Court Justice Stephen G. Breyer's speech at Harvard Law School's annual Scalia Lecture held April 7th, where he discussed the complexities at the intersection of the “authority of the court” and the “peril of politics”. In his speech, Breyer warned against court-packing and said that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.”
“What I’m trying to do is to make those whose initial instincts may favor important structural change or other similar institutional changes — such as forms of court-packing — think long and hard before they embody those changes in law,” he said.
FinCEN's Proposed Rule
Later in the episode, Mark explains NCLA’s objection to a proposed rule by the Financial Crimes Enforcement Network (FinCEN) within the U.S. Department of Treasury. The "Requirements for Certain Transactions Involving Convertible Virtual Currency or Digital Assets" presents USTD's planned “crackdown” on cryptocurrency holders’ private wallets. NCLA considers this an unconstitutional power grab that would lead to a massive collection of people’s personal information. The unlawful requirements laid out by FinCEN, would likely force privacy-sensitive digital assets out of the U.S. banking system. The proposed rule represents a radical—and unlawful—extension of FinCEN’s financial surveillance.
If FinCEN moves forward with its proposal in its current form, digital assets would fall into the “monetary instruments” category of regulated currencies. That designation would mean a vast expansion of the Bank Secrecy Act’s (BSA) record-keeping and currency transaction reporting requirements—to collect private data of Bitcoin’s and Ethereum’s users, among others. Besides transaction reports, the proposed rule sets in motion a chain reaction of personal information mandatory disclosure. Whenever a financial institution makes a transaction involving digital assets worth more than $3,000 with a person—even an individual holding them in an “unhosted” wallet—it must keep detailed records concerning both the customer and the counterparty. Even existing BSA requirements for traditional banks do not require this level of disclosure about counterparties.
NCLA argues that the proposed rule exceeds appropriate constitutional limits by empowering FinCEN to exercise Congress’ exclusive legislative power. First, in reclassifying digital assets, FinCEN is not filling in details in existing law, but rather is writing new rules, on new subjects, with criminal consequences. Second, the proposed rule is not within the Executive Branch’s inherent powers, for it creates whole new types of criminal liability—a uniquely legislative prerogative.
Furthermore, the proposed rule violates the Fourth Amendment by extending the BSA’s reach to require production of sensitive financial information from those who have never voluntarily disclosed it to a financial institution, and who, like cryptocurrency owners, have been excluded from the BSA’s reach. It would unconstitutionally require disclosure of private information to law enforcement without any suspicion of wrongdoing.
Read more about our objection to the proposed rule here: https://nclalegal.org/2021/03/ncla-comments-warn-against-treasurys-proposed-crypto-surveillance-rule-as-unconstitutional/
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Sixth Circuit Strikes Down Bump Stock Ban
Mark explains the Sixth Circuit’s strike down of the bump stock ban and its refusal to defer to ATF’s legal interpretation.
A federal appeals court Thursday (March 25) ruled that a federal regulation barring bump stocks is likely illegal and was incorrect in claiming that the devices make a weapon a machine gun.
The 6th U.S. Circuit Court of Appeals ruled that the accessories are not subject to a 2018 ban imposed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) at the order of then-President Donald Trump.
Amicus Briefs Filed In NCLA’s Case Against NLRB
Vec details amicus briefs filed in NCLA’s Third Circuit FDRLST case, including one signed by PJ O’Rourke and Penn & Teller.
Liberty-minded organizations, distinguished civil liberties activists, including former ACLU president Nadine Strossen, and prominent entertainers, Penn and Teller, are among the amici curiae who have filed briefs in support of the arguments presented by NCLA in the satirical tweet case, FDRLST Media v. NLRB.
NCLA’s appellate brief asks the U.S. Court of Appeals for the Third Circuit to reverse the flawed ruling of the National Labor Relations Board (NLRB) from last November, which concluded that Mr. Domenech’s satirical tweet from his personal account constituted an unfair labor practice by his employer. FDRLST Media, publisher of the online magazine The Federalist, is fighting back because NLRB has neither subject-matter jurisdiction over this case nor personal jurisdiction over the company.
Bridging the political divide, the amici curiae briefs contend that individuals have the right to speak freely and satirically to express their personal views under the First Amendment of the U.S. Constitution.
Read more about the case here: https://nclalegal.org/joel-f-v-fdrlst-media-llc/
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NCLA Amicus Victory
In an NCLA amicus victory, Mark discusses a Second Circuit en banc Fair Housing Act case that refused to create landlord liability for tenant-on-tenant discrimination.
On March 25, a 7-5 en banc ruling in the U.S. Court of Appeals for the Second Circuit vacated a flawed panel decision and dismissed the complaint in the case Donahue Francis v. Kings Park Manor, Inc., et al. The court’s decision on narrow grounds correctly interpreted the scope of the statutes, held the plaintiff to appropriate pleading requirements, and thus affirmed the district court’s dismissal of a claim that sought to hold a landlord liable for tenant-on-tenant racial harassment.
Read more about the case here: https://nclalegal.org/2021/03/victory-second-circuit-refuses-to-make-landlords-liable-for-tenant-on-tenant-racial-harassment/
WI Sup. Ct. Shuts Down Gov.'s State of Emergency
Vec praises a Wisconsin Supreme Court ruling shutting down the governor’s efforts to perpetuate a state of emergency.
The court ruled 4-3 that Governor Tony Evers violated state law by unilaterally issuing multiple emergency orders to extend the mandate for months. It found that Gov. Evers needed legislative approval to issue more orders after the expiration of the initial 60-day mandate he issued in August.
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Win in R-CALF v. USDA
Mark and Vec are joined by special guest, Senior Litigation Counsel Harriet Hageman to discuss R-CALF’s victory against USDA.
NCLA is celebrating an important win for America’s ranchers after the U.S. Department of Agriculture (USDA) and its subagency, the Animal and Plant Health Inspection Service (APHIS) announced that they will go through a full rule-making process pursuant to the Administrative Procedure Act (APA) to make any changes to the 2013 Final Rule governing animal identification and traceability. They will thus abandon their prior attempt to replace the rule with guidance, which has been at the root of NCLA’s lawsuit against the agencies.
Read more about the case here: https://nclalegal.org/2021/03/nclas-suit-forces-usda-to-abandon-efforts-to-use-guidance-to-mandate-rfid-eartags-for-livestock/
Chief Justice Roberts' Comments on Antiquities Act of 1906
Later in the episode, Vec and Mark discuss the implications of Chief Justice Roberts’ comment on the denial of certiorari in the case of the Massachusetts Lobstermen’s Association.
On Monday (03/22), the Chief Justice of the United States gave his opinion on how much power presidents have to treat 3.2 million acres of underwater area as a monument under the Antiquities Act of 1906. Chief Justice Roberts expressed his “concerns” about presidents wielding sweeping authority in this area.
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Cedar Point Nurseryv. Hassid and Harper v. IRS
Vec discusses the oral argument heard before the Supreme Court in the case Cedar Point Nursery v. Hassid.
Cedar Point Nursery and Fowler Packing Company are California growers that produce fruit for millions of Americans. Collectively, they employ around 3,000 Californians. In 2015, the United Farm Workers (UFW) viewed the workers as ripe for the picking and sent union organizers to storm the workplaces during harvest time to encourage them to unionize. Even though property owners have a right to exclude trespassers, the state’s Union Access Regulation takes an easement that allows these union organizers to enter a business’s private property three hours a day, 120 days a year. The businesses are asking the U.S. Supreme Court to invalidate California’s unlawful regulation and affirm that government can’t allow unions to invade private property and disrupt commercial operations without paying compensation for a property taking.
Later, Mark discusses the dismissal of James Harper v. Charles P. Rettig, et al by the U.S. District Court for the District of New Hampshire. The district court’s flawed decision would ensure that no matter how many constitutional rights the IRS violates, Americans may not hold the agency accountable. NCLA represents James Harper in the lawsuit against IRS for violating his Fourth and Fifth Amendment constitutional rights by issuing a demand for his financial records from a third party without reasonable suspicion—let alone probable cause—that he violated any law.
Read more about the case here: https://nclalegal.org/2021/03/district-court-ruling-would-permit-irs-to-violate-constitutional-rights-with-impunity/
DOT’s Withdrawal of Due Process Rights
Later in the episode, Mark discusses the Department of Transportation’s withdrawal of due process rights.
The U.S. Department of Transportation has begun the process of undoing a set of Trump-era regulations. The DOT under Secretary Elaine Chao, following the policies Trump laid out in a series of executive orders, had imposed new restrictions on guidance documents, such as legal reviews and cost estimates. The new Transportation Secretary, Pete Buttigieg, moved Wednesday (March 24) to undo key deregulatory actions taken by the Trump administration.
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King George III Prize
NCLA's Director of Engagement, Clegg Ivey, joins the show to discuss with Mark and Vec the King George III Prize bracket contest.
NCLA is proud to launch The King George III Prize- a new campaign calling out the most egregious violations of our basic civil liberties by highlighting the people and institutions responsible for those abuses.
Join us as we thumb our noses at these runaway regulators, officious bureaucrats, and god-complex governors. Watch gleefully as we force them to battle it out head-to-head in tournament-style matchups.
In the spirit of the madness that only March can bring, we've arranged our nominees into tournament-style brackets. Check out the brackets and cast your vote for the winner at https://nclalegal.org/king-george-iii-prize/.
Unconstitutional Surveillance
Later in the episode, Mark and Vec discuss license plate and motor car monitoring without warrants.
Coral Gables is an upscale, historic municipality of Miami-Dade County, Florida. Residents take pride in their tree-lined streets and so they call it “City Beautiful.” But the city has now lined the streets with Automatic License Plate Readers (ALPRs).
NCLA is suing the City of Coral Gables as well as the Florida Department of State (FDOS) and the Florida Department of Law Enforcement (FDLE), on behalf of long-time Coral Gables resident, Raul Mas Canosa. Mr. Mas Canosa says the city’s use of Automatic License Plate Readers, is a violation of Florida Law and Floridians’ Fourth Amendment rights to privacy.
Read more about the case here:
https://nclalegal.org/coral-gables/
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The SEC Gag Rule
In this episode, Mark is joined by NCLA Senior Litigation Attorney Peggy Little to discuss Barry Romeril's case against the SEC gag rule.
When Barry D. Romeril settled with the United States Securities and Exchange Commission (SEC) in June of 2003 he didn’t know he would live to regret it 16 years later. That is because in order to settle his case, the SEC required that he agree to be bound by a Gag Order- a little known tool of the SEC meant to silence people for life regarding cases brought against them. NCLA has moved to remove the gag order from his consent agreement because it is an unconstitutional prior restraint and content-based restriction on speech, abridging freedom of the press and Americans’ right to petition. In October of 2018, NCLA pioneered the legal challenges to this rule by petitioning the SEC to amend its gag rule, setting forth in detail the numerous constitutional and legal infirmities of this unconstitutional and disturbing practice.
Read more about the case here: https://nclalegal.org/romeril-sec/
Mossman v. CDC
Later in the episode, Vec and Mark discuss the CDC eviction order and NCLA’s new class-action suit against it, Mossman v. CDC.
The laws of all fifty states provide the remedy of eviction through state processes to retake possession of a home you have rented out. But a national eviction moratorium issued by the Centers for Disease Control and Prevention (CDC) in 2020 to “prevent” the spread of COVID-19 denies Plaintiffs the only lawful means available to them to evict a delinquent tenant—access to the courts. NCLA filed a class-action lawsuit in the U.S. District Court for the Northern District of Iowa on behalf of Asa Mossman of Cedar Rapids, Iowa, and many other blameless housing providers left powerless against the CDC’s lawless order.
Read more about the case here: https://nclalegal.org/2021/03/ncla-files-class-action-lawsuit-to-put-an-end-to-cdcs-lawless-nationwide-eviction-moratorium/
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Biden's Executive Order Frenzy
Vec and Mark discuss the Biden administration's executive orders. President Joe Biden has signed more than 30 executive orders to date, nearly as many as the past four presidents combined at this point in their terms.
On March 2, 2021, the Wall Street Journal published the article, "Biden’s Hurdle: Courts Dubious of Rule by Regulation," regarding President Biden's swift executive orders and organizations like NCLA that are troubled by the modern trend of using executive orders in place of legislation.
Read the WSJ article: https://nclalegal.org/2021/03/bidens-hurdle-courts-dubious-of-rule-by-regulation/
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CDC's Eviction Moratorium Declared Invalid
NCLA Litigation Counsel, Caleb Kruckenberg joins Mark in a discussion regarding this week's decision in Skyworks, LTD., et al., v. Centers for Disease Control and Prevention, et al.
The U.S. District Court for the Northern District of Ohio ruled that the nationwide moratorium issued by the Centers for Disease Control and Prevention (CDC) stopping residential evictions exceeded the agency’s statutory authority.
NCLA filed an amicus brief in November 2020 on behalf of the National Apartment Association and the National Association of Residential Property Managers in support of the challenge brought by Plaintiffs. The court’s ruling closely tracked NCLA’s argument and stated that the statute could not be extended to give CDC the kind of power necessary to overrule state law. The court then declared the moratorium order invalid—nationwide.
The Plaintiffs, in this case, made the same arguments that NCLA presented in Brown v. CDC NCLA’s challenge to CDC’s Nationwide Eviction Moratorium Order. The Ohio federal court took aim at the decision in Brown denying a preliminary injunction, saying that decision had “the feel of adopting strained or forced readings of the statute, stretching to rationalize the governmental policy at issue.” The court concluded, “That is not a proper methodology of statutory interpretation. Nor is it the proper role of the courts. Although the Court reaches a different result than the Brown … Court[], the language of the statute compels that result.”
NCLA has appealed the Northern District of Georgia’s decision in Brown v. CDC to the Eleventh Circuit U.S. Court of Appeals. We will encourage the appellate court to follow the reasoning of today’s opinion. NCLA congratulates the Pacific Legal Foundation, which served as lead counsel for the Plaintiffs, on this terrific outcome.
Read more about the case here:
https://nclalegal.org/amicus-brief-skyworks-ltd-et-al-v-centers-for-disease-control-and-prevention-et-al/
The Case Which Must Not Be Named
Later in the episode, Mark and Caleb discuss Aposhian v. Wilkinson, one of NCLA's cases challenging ATF's bump-stock ban.
A majority en banc panel in the U.S. Court of Appeals for the Tenth Circuit voted 6-5 on March 5th, to vacate the court’s Sept. 4, 2020 order granting en banc rehearing of Aposhian v. Wilkinson. It also reinstated the court’s deeply flawed May 7, 2020 opinion, which invoked the Chevron doctrine to deny NCLA client Clark Aposhian’s appeal of his challenge to the bump stock ban imposed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in March of 2019.
As a result, Chief Judge Tymkovich, writing for himself and four other dissenting members of the Court, compared Chevron to “Lord Voldemort”—a character from the Harry Potter series considered to be the most powerful and dark wizard of all time—because litigants must now be afraid of even mentioning the case. “Under the panel majority’s theory, a party that challenges an agency’s interpretation of a rule is forced to dance around Chevron, even where the government has not invoked it. Chevron becomes the Lord Voldemort of administrative law, ‘the-case-which-must-not-be-named.’ And litigants bold enough to expressly oppose Chevron in their briefing will be left guessing whether their reference to the case was fleeting or perfunctory enough to avoid making an invitation. All the while, courts are given a troubling amount of freedom when deciding whether to use Chevron—discretion that will dictate the outcome in many cases.”
In his appeal, Mr. Aposhian asked whether the Chevron doctrine applies when the agency does not invoke it and whether the Chevron doctrine may apply to criminal regulations given that the rule of lenity requires courts to construe ambiguous laws away from imposing criminal liability. By allowing ATF to create new criminal liability here, according to the dissenting judges, “the Final Rule violates the separation of powers” and the “delegation [of Congressional power] raises serious constitutional concerns by making ATF the expositor, executor, and interpreter of criminal laws.”
The case also raised key issues about whether an agency can rewrite a federal criminal law. Mr. Aposhian argues that the National Firearms Act is not ambiguous and bump stocks are not machineguns, which is the same position the Department of Justice had taken in every prior machine gun possession case it has prosecuted in the last 30+ years. The dissenting judges agree, “The statute’s plain meaning unambiguously excludes bump stocks.” ATF’s rule, however, rewrites the federal law and declares that every person who lawfully purchased a bump stock is now a federal felon.
NCLA will continue to litigate this case, which may include seeking review in the U.S. Supreme Court.
Read more about the case here: https://nclalegal.org/aposhian-barr/
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Carr v. Saul
In this episode, Mark and Vec share their opinions on the oral argument presented before the U.S. Supreme Court in the case of Carr v. Saul.
In January 2021, NCLA filed a joint amicus brief with the Cato Institute arguing that no federal law prohibits Petitioners—and similarly situated Social Security claimants—from raising a claim in federal court that they did not first raise before a Social Security Administrative (SSA) Administrative Law Judge (ALJ).
Learn more about the case here: https://nclalegal.org/willie-earl-carr-et-al-v-andrew-m-saul-commissioner-of-social-security-john-j-davis-et-al-v-saul/
"The For the People Act"
Later in the episode, Vec and Mark talk about HR 1, a bill requiring non-profits to reveal their donors and also requiring the Supreme Court to issue a code of ethics that they will follow.
The legislation is designed "to expand Americans' access to the ballot box, reduce the influence of big money in politics, strengthen ethics rules for public servants, and implement other anti-corruption measures for the purpose of fortifying our democracy, and for other purposes." Republicans on Capitol Hill argue that the proposal is a political effort to federalize elections.
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Waters of the United States
In this episode, Mark and Vec are joined by guest Jonathan D. Brightbill, former acting Assistant Attorney General, U.S. Department of Justice. Together they discuss the recent decision in State of Colorado v. EPA.
The Tenth Circuit's review centered on what are "waters of the United States." In April 2020, the Environmental Protection Agency and the Army Corps of Engineers tried to define the phrase through a regulation called the Navigable Waters Protection Rule (NWPR). The State of Colorado swiftly challenged the NWPR in federal court, arguing the new rule, despite its name, did very little to protect the waters of the United States and was both substantively and procedurally flawed. The district court agreed and issued an order staying the effective date of the NWPR. The Tenth Circuit was asked whether the district court abused its discretion when it granted Colorado injunctive relief. To this, the Court responded in the affirmative: "Colorado asked for immediate relief but hasn’t shown it will suffer irreparable injury absent a preliminary injunction. Because that alone compels us to reverse, we do not consider the other preliminary injunction factors."
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Trump's Taxes in Play
The Supreme Court on Monday (02/22) declined to step in to halt the turnover of former President Trump's tax records to a New York state prosecutor. Vec and Mark discuss the latest updates in the prosecution of former President Trump in New York.
Milice v. CPSC
Later in the episode, Mark and Vec discuss Lisa Milice's case against the U.S. Consumer Product Safety Commission and its “secret” rules.
NCLA is helping Milice, a new mother, challenge CPSC’s practice of keeping consumer product safety standards hidden behind a private paywall.
Milice, a potential infant bath seat purchaser, asked CPSC to let her see a copy of its Safety Standard for Infant Bath Seats. The Commission responded that it does not allow people to see the Rule and directed her to buy a copy from ASTM International, a private organization that specializes in creating safety standards. ASTM charges $56.00 for a copy of the law—about twice the cost of an infant bath seat. According to CPSC, any person interested in viewing one of the Commission’s safety standards that has been incorporated by reference must pay the purchase price ASTM sets—a deeply arbitrary and capricious policy that allows a private organization to hold a monopoly over access to a binding legal standard.
NCLA argues that CPSC (or any other government agency, for that matter) cannot charge for access to the law because citizens are the government and the authors of the law—and the law in its entirety belongs to the citizenry. CPSC’s failure to make a copy of the Rule freely accessible to the public violated the requirement in the Commission’s organic statute that CPSC must publish the text of its rules. The Commission’s scheme also violates the Freedom of Information Act and the Administrative Procedure Act’s guarantees that materials incorporated by reference into agency rules be reasonably available to the public.
A video released this past week reveals Milice's fight to see the law. Watch it here: https://youtu.be/ToMiloTRIrU
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Rush Limbaugh
Vec and Mark reflect on Rush Limbaugh’s influence. After announcing last year that he had stage four lung cancer, Rush Hudson Limbaugh III died at age 70. Limbaugh was an American radio personality, conservative political commentator, author, and television show host. He was best known as the host of The Rush Limbaugh Show.
Trump's DOJ v. Biden's DOJ
Later in the episode, Vec and Mark discuss cases the DOJ is dropping as a result of the change in administration.
Earlier this month the U.S. Department of Justice has dropped its lawsuit brought by the Trump administration against Yale University. The DOJ sued Yale in October 2020 for race and national origin discrimination, alleging that most Asian American and white applicants have one-eighth to one-fourth the likelihood of admission as African American applicants with comparable academic credentials.
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