Unwritten Law

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione discuss the growing real-world impact of the Supreme Court’s landmark decisions in Loper Bright and Relentless—the cases that ended Chevron deference and restored the judiciary’s independent role in interpreting federal statutes.As the two-year anniversary of the decisions approaches, Mark and John examine several major lower-court rulings already shaped by the new legal framework. The discussion focuses on a recent Eighth Circuit decision striking down an FCC rule on “digital discrimination” in broadband access, where the court held that the agency exceeded the authority Congress actually granted in statute.The episode also explores another FCC dispute involving a proposed media merger and the agency’s attempt to avoid judicial review while allowing the merger to proceed. Mark and John explain how courts are increasingly applying Loper Bright to ensure agencies follow the text Congress enacted—not policy preferences agencies wish Congress had adopted.The conversation highlights how the end of Chevron deference is reshaping administrative law across industries, why the effects are not limited to any one political party or industry, and how the decisions are restoring courts to their constitutional role in deciding what the law means.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione discuss a major victory in Flint Ave. LLC v. U.S. Department of Labor, after the federal government decided not to move forward with its appeal.The case challenged a Department of Labor rule that dramatically increased the salary threshold for employees classified as exempt from overtime and minimum wage requirements under the Fair Labor Standards Act. NCLA argued that the rule unlawfully elevated salary level over the actual duties employees perform—contrary to the statute Congress enacted.John explains how the district court permanently set aside and vacated the rule nationwide, why the government’s appeal remained pending for more than a year, and what it means now that the Department of Justice has agreed to dismiss the appeal.The discussion also explores the practical consequences of the rule for businesses and workers who rely on flexible schedules, including part-time managers and employees who prioritize flexibility over rigid salary structures. Mark and John explain why the decision represents both a major victory for their client, Flint Ave. LLC, and an important reaffirmation that agencies cannot rewrite statutes through regulation.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Litigation Counsel Andy Morris to discuss new developments in Newman v. Moore, an NCLA case asking the U.S. Supreme Court to decide whether Judge Pauline Newman has a right to judicial review after being sidelined from the Federal Circuit for more than three years.The conversation focuses on a series of newly filed amicus briefs supporting Supreme Court review, including briefs from retired federal judges, former Federal Circuit clerks, legal scholars, and the D.C. Bar. Andy explains why many attorneys have been reluctant to publicly support Judge Newman despite widespread concern within the legal community, and why several amici argue the case raises profound questions about judicial independence and separation of powers.The episode examines claims that internal judicial administrative processes have been used to effectively remove an Article III judge from active service without impeachment or meaningful judicial review. Mark, John, and Andy also discuss the unusual refusal to transfer the matter to another circuit, concerns about secrecy and selective disclosure, and the argument that Judge Newman’s removal has had a chilling effect on dissent within the Federal Circuit.The discussion also highlights Judge Newman’s continued public appearances, her extensive record of influential dissents, and why amici argue the Supreme Court should intervene to clarify the constitutional limits of internal judicial disciplinary power.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Senior Litigation Counsel Russ Ryan to discuss Michael Sztrom and David Sztrom v. SEC, a case raising fundamental questions about administrative power and the right to a fair hearing.After settling an SEC enforcement action in federal court, the Sztroms were subjected to a second, follow-on administrative proceeding that could bar them from the securities industry—based on the same underlying allegations. Russ explains NCLA’s amicus brief supporting their appeal and why the case challenges the structure of SEC enforcement.The discussion focuses on whether individuals are entitled to an Article III court and jury trial when the government seeks to impose severe penalties such as industry bans—even when those penalties are labeled “non-monetary.” The episode also explores how SEC settlement practices limit defendants’ ability to challenge allegations, effectively precluding meaningful defense in subsequent proceedings.Mark, John, and Russ examine how this case builds on recent Supreme Court precedent, why agency adjudication raises serious constitutional concerns, and what’s at stake if courts allow administrative prosecutions to proceed without full judicial safeguards.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Senior Litigation Counsel Peggy Little to discuss new developments in Powell v. SEC, a case asking the U.S. Supreme Court to review the SEC’s long-standing gag rule.The discussion focuses on a wave of 16 amicus briefs filed in support of Supreme Court review, representing a broad coalition of organizations, legal scholars, and former SEC attorneys. Peggy walks through the key arguments raised across the briefs, including claims that the gag rule constitutes prior restraint, compelled speech, and an unconstitutional condition on settlement.The episode explores how the rule prevents individuals from ever publicly disputing the SEC’s allegations—even after settlement—while allowing the agency to control the narrative. The conversation also highlights the real-world consequences: reputational harm, career disruption, and the reality that most defendants settle not because they are guilty, but because they cannot afford the cost of fighting the government.Mark, John, and Peggy examine why the rule has persisted for decades, why it stands out as an outlier among federal agencies, and why this case could provide the Supreme Court with an opportunity to address a long-standing tension between administrative enforcement and the First Amendment.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Senior Litigation Counsel Russ Ryan to discuss Lek Securities Corp. v. SEC, a case highlighting extreme delays in administrative adjudication.The case involves a nearly decade-long delay by the SEC in resolving an appeal from a New York Stock Exchange disciplinary action—raising serious constitutional and statutory concerns. Russ explains how the delay implicates due process, the Administrative Procedure Act’s requirement that agencies act within a reasonable time, and even the SEC’s own internal deadlines.The conversation explores why such delays matter: individuals and firms can be effectively punished long before a final decision is issued, facing reputational harm, business disruption, and prolonged uncertainty. Mark, John, and Russ also discuss potential remedies, including whether courts should set aside agency actions when delays become egregious.The episode highlights broader structural concerns about administrative adjudication, including lack of accountability, limited access to judicial review, and incentives that allow agencies to delay decisions without consequence.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by NCLA General Counsel Zhonette Brown to discuss new developments in Choice Refrigerants v. EPA, a case asking the U.S. Supreme Court to revisit the nondelegation doctrine.The conversation focuses on a wave of amicus briefs filed in support of Supreme Court review, including a brief led by West Virginia and joined by 20 other states, as well as submissions from organizations such as Americans for Prosperity Foundation, Cato Institute, Manhattan Institute, and Southeastern Legal Foundation.Zhonette explains the key arguments raised in those briefs, including how broad delegations of power to federal agencies can undermine federalism by displacing state authority, why doctrines like the “major questions” rule may not be sufficient to protect the separation of powers, and how shifting regulatory interpretations can create instability for businesses.The episode also examines arguments that delegation must be grounded in the Necessary and Proper Clause, concerns about courts and agencies effectively supplying their own “intelligible principles,” and why this case is viewed as a strong vehicle for the Supreme Court to take up the nondelegation issue.Mark, John, and Zhonette close by discussing the road ahead, including the timeline for responses and when the Court is expected to decide whether it will hear the case.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione break down a recent decision from the U.S. Court of Appeals for the D.C. Circuit involving plans to construct a ballroom at the White House.The case—brought by the National Trust for Historic Preservation—sought to halt construction, raising questions about historic preservation, executive authority, and whether private organizations have standing to challenge government building decisions on aesthetic grounds. The D.C. Circuit ultimately remanded the case to the district court, questioning the basis for an earlier injunction.Mark and John explore the key legal issues, including whether the plaintiffs have standing, the scope of statutory authority allowing the President to “improve” the White House grounds, and how national security considerations factor into the analysis—particularly regarding underground security features tied to the project.The episode also examines the practical realities of the case, including the fact that the original structure has already been demolished, raising questions about what relief is even possible at this stage of litigation.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione break down Trump v. Barbara, a closely watched case before the U.S. Supreme Court addressing the scope of birthright citizenship under the Fourteenth Amendment.John shares firsthand insights from attending oral argument, where the Court considered whether the Constitution guarantees citizenship to all children born in the United States or whether limits may apply to the children of illegal immigrants and temporary visitors. The case stems from an executive order directing federal agencies to reinterpret the Citizenship Clause—raising both constitutional and administrative law questions.The discussion explores the historical understanding of the Fourteenth Amendment, the role of allegiance and jurisdiction, and key precedents such as United States v. Wong Kim Ark. Mark and John also examine competing arguments presented at oral argument, including concerns about retroactivity, congressional authority, and the practical consequences of altering long-standing interpretations of citizenship.The episode also highlights commentary from legal scholars, including an article by Philip Hamburger, and explains why the Court’s decision—expected later this term—could have major implications for immigration policy, constitutional law, and the separation of powers.Philip Hamburger's article in Law & Liberty: Allegiance, Birthright, and Citizenshiphttps://lawliberty.org/allegiance-birthright-and-citizenship/

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth, Senior Litigation Counsel John Vecchione, Senior Litigation Counsel Peggy Little, and Of Counsel Margot Cleveland discuss a major settlement in The Daily Wire, The Federalist, and the State of Texas v. U.S. Department of State.The case challenged a years-long effort in which State Department funds were routed through third-party organizations and technologies—such as the Global Disinformation Index and NewsGuard—to suppress and demonetize certain media outlets. According to the settlement, the government acknowledged that aspects of these activities violated the First Amendment and involved unlawful conduct.The episode explains how the alleged “boomerang effect” allowed the government to work through foreign and private intermediaries to impact domestic speech, the investigative work that uncovered the scheme, and the discovery that revealed the scope of coordination across agencies, nonprofits, universities, and technology platforms.Peggy and Margot walk through the key terms of the settlement, including restrictions on government coordination with censorship technologies, limits on grant funding tied to domestic speech, training and compliance requirements, and long-term oversight provisions designed to prevent similar conduct in the future.The discussion also highlights the role of journalists, plaintiffs willing to challenge the government, and the court in bringing the case forward—and why the outcome may have significant implications for free speech, government accountability, and the limits of federal power.

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by NCLA Litigation Counsel Casey Norman to discuss Pheasant v. United States, a case asking the U.S. Supreme Court to consider whether Congress can delegate the power to create criminal laws to federal agencies.The case began when a man riding a dirt bike on Bureau of Land Management land was charged with a criminal offense—not because Congress passed a law making his conduct a crime, but because a federal agency created the regulation and attached criminal penalties to it. NCLA filed an amicus brief supporting Supreme Court review, arguing that allowing agencies to define criminal conduct raises serious constitutional concerns.The discussion explains the nondelegation doctrine, the “intelligible principle” test, and why criminal law raises special due process concerns when agencies—not Congress—decide what conduct can lead to fines or prison time. The episode also explores how modern courts interpret delegation differently than earlier courts and why this case could have major implications for the separation of powers.

Did the government install tracking software on people’s phones without permission?In this episode of Unwritten Law, Mark Chenoweth and John Vecchione are joined by NCLA Senior Litigation Counsel Peggy Little to discuss Wright v. Goldstein, a case challenging Massachusetts’ use of COVID contact-tracing technology that was allegedly installed automatically on Android phones without users’ knowledge or consent.The lawsuit argued that the program violated the Fourth Amendment, the Fifth Amendment, and computer intrusion laws by forcing software onto private phones and collecting sensitive data, including location and health information. The case resulted in a settlement requiring the state to delete the data and agree not to use similar technology for five years.This episode explains the case, the constitutional issues, and why the settlement could have nationwide implications for digital privacy and government surveillance.

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione and NCLA General Counsel Zhonette Brown discuss their work on Murthy v. Missouri, one of the most significant First Amendment cases in recent years.They explain how the case began, the discovery battles that revealed government “back-channel” communications with social media companies, the preliminary injunction, the Supreme Court’s standing decision, and the consent decree that followed. They also discuss what the government agreed to in the settlement and what it could mean for free speech and government involvement with online platforms in the future.This conversation offers a behind-the-scenes look at how the case unfolded over several years—and why its outcome could shape First Amendment law in the years ahead.

In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by NCLA Litigation Counsel Andy Morris to discuss Newman v. Moore, a case asking the U.S. Supreme Court to decide whether a federal judge can be effectively removed from hearing cases without meaningful judicial review.Judge Pauline Newman of the U.S. Court of Appeals for the Federal Circuit has been barred from hearing new cases for years under the Judicial Conduct and Disability Act—despite never being impeached and despite medical evaluations finding her fit to serve. The courts so far have refused to review the merits of her case, citing precedent that treats these actions as internal court administration.The petition asks the Supreme Court to decide whether courts must be able to review actions that go beyond temporary administrative measures and effectively remove an Article III judge from the bench. The case raises major constitutional questions about judicial independence, separation of powers, and whether “court administration” can be used in a way that avoids judicial review altogether.Mark, John, and Andy explain the legal issues, the procedural hurdles, and why the case is about more than one judge—it’s about whether there are limits on internal judicial power and whether federal courts must be open to hear constitutional claims.

In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Senior Litigation Counsel Peggy Little to discuss Powell v. SEC, case that NCLA is asking the U.S. Supreme Court to review the SEC’s long-standing “gag rule.”The rule prohibits individuals who settle with the SEC from ever publicly denying the agency’s allegations—even if they believe those allegations are false. Peggy explains why the case presents a major First Amendment question involving prior restraint, viewpoint discrimination, and unconstitutional conditions.The conversation also explores the real-world consequences of the rule: how it silences defendants, prevents journalists from reporting both sides of enforcement actions, distorts market information, and allows agencies to expand their power through settlements that most people cannot afford to fight.The episode discusses key Supreme Court precedents, the Ninth Circuit’s ruling, and why this case could have major implications not just for the SEC, but for government settlement practices across the administrative state.

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by NCLA Staff Attorney Andreia Trifoi to discuss a major Fourth Amendment case before the U.S. Supreme Court involving the use of geofence warrants.Geofence warrants allow law enforcement to obtain location data from companies like Google identifying every device within a specific area during a defined period of time—potentially sweeping in dozens or even hundreds of people with no connection to any crime. Andreia explains how these warrants work, why they often capture innocent bystanders, and how they were used in a bank robbery investigation in Virginia.The conversation focuses on the constitutional question at the heart of the case: whether geofence warrants are modern-day general warrants, the very abuse that helped inspire the Fourth Amendment. The discussion also explores how the Supreme Court’s decision in Carpenter v. United States applies to modern location tracking, the challenges courts face when adapting older doctrines to new technology, and the growing tension between privacy rights and expansive digital surveillance.John and Andreia also examine the fractured opinions in the Fourth Circuit, the role of the good-faith exception, and why this case could shape the future of Fourth Amendment protections in the digital age.

In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione welcome Caitlin Moyna, Senior Litigation Counsel at the New Civil Liberties Alliance, to the podcast for the first time.The conversation focuses on the controversial “disparate impact” liability rule in housing law and HUD’s effort to rescind it. The rule allows liability for housing practices that unintentionally affect one group more than another—even when there is no intent to discriminate.Caitlin explains how this doctrine emerged from a series of Supreme Court cases, beginning with Griggs v. Duke Power and later extending into the housing context through Texas Department of Housing and Community Affairs v. Inclusive Communities Project. The discussion explores how disparate impact liability shifted discrimination law away from intentional conduct and toward statistical outcomes.The episode also examines how agency interpretations and judicial deference helped expand this doctrine over time—and why recent Supreme Court decisions curtailing agency deference may put its legal foundations into question.Mark, John, and Caitlin discuss the implications of HUD rescinding the rule, why private lawsuits could still continue under the statute, and what a broader reevaluation of disparate impact liability could mean for housing, employment, lending, and other areas of federal regulation.

In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by NCLA General Counsel Zhonette Brown to discuss a petition for certiorari asking the U.S. Supreme Court to take up a major separation-of-powers case involving the Environmental Protection Agency.The case, Choice Refrigerants v. EPA, challenges how the agency implemented Congress’s AIM Act, which created a cap-and-trade system to phase down certain refrigerants. According to the petition, Congress provided virtually no guidance on how market allowances should be distributed—leaving EPA with sweeping discretion to decide which companies would keep their market share and which would lose it.Zhonette explains why this case presents a “clean vehicle” for the Supreme Court to revisit the nondelegation doctrine, which holds that Congress cannot hand over its legislative power to executive agencies without providing meaningful direction. The discussion explores the “intelligible principle” test, the D.C. Circuit’s reasoning, and why the Court may finally confront the limits of congressional delegation after nearly a century without striking down a statute on nondelegation grounds.The episode also highlights the real-world stakes for small businesses like Choice Refrigerants, founded by entrepreneur Ken Ponder, whose patented refrigerant products were affected by EPA’s allocation decisions.

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione and NCLA President Mark Chenoweth are joined by Andy Morris to discuss the Supreme Court’s 6–3 decision rejecting the claim that the President has unilateral authority to impose, raise, or lower tariffs under the International Emergency Economic Powers Act (IEEPA).The conversation unpacks Chief Justice Roberts’s majority opinion, which relies on careful textual analysis to reaffirm that tariff authority belongs to Congress—not the Executive. John, Mark, and Andy explain why the statute’s language does not authorize revenue-raising measures, how the Constitution’s prohibition on export taxes reinforces that conclusion, and why decades of practice confirm that “regulating importation” does not mean imposing tariffs.They also examine the dissents, including Justice Kavanaugh’s reliance on prior cases like Algonquin, the role of the Major Questions Doctrine, and why emergency powers do not justify bypassing Congress’s exclusive taxing authority. The episode closes with a broader discussion of separation of powers, the dangers of discretionary tariff regimes, and why this decision represents a major win for constitutional limits on executive power.

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by NCLA Senior Litigation Counsel Kara Rollins to discuss Sripetch v. SEC, a securities law case scheduled to be argued before the U.S. Supreme Court in April.The case asks a critical question: must the Securities and Exchange Commission prove that investors suffered actual financial harm in order to obtain disgorgement in a civil enforcement action? John and Kara explain how recent Supreme Court decisions, including Kokesh and Liu, narrowed the SEC’s disgorgement authority while leaving this issue unresolved.

In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione mark the ten-year anniversary of what’s often called the Supreme Court’s “emergency docket”—sometimes labeled the “shadow docket”—and examine how it has reshaped constitutional litigation.Mark and John explain what the emergency docket is, how it differs from merits decisions, and why its modern form is often traced to the Supreme Court’s 2016 decision to stay the Obama Administration’s Clean Power Plan. They discuss why emergency relief can be critical to preventing irreversible “fait accompli” outcomes when executive action races ahead of judicial review.The conversation also explores debates sparked by critics of the emergency docket, the confusion it can create for lower courts, and whether decisions issued without full opinions should bind judges below. Along the way, Mark and John reflect on the legacy of Justice Antonin Scalia—whose final vote played a key role in the Clean Power Plan stay—and how his jurisprudence continues to influence debates over judicial power, originalism, and the proper limits of the administrative state.

In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Russ Ryan to discuss a recent oral argument before the U.S. Court of Appeals for the Sixth Circuit challenging the federal government’s student loan payment and interest pause.The case, Mackinac Center for Public Policy v. U.S. Department of Education, focuses on the executive branch’s decision—under both the Trump and Biden administrations—to extend a moratorium on student loan payments and interest accrual long after Congress’s limited authorization expired. Russ explains why those unilateral extensions wiped away billions of dollars in interest without statutory authority.The discussion zeroes in on standing: how nonprofit public-interest employers benefit from Congress’s Public Service Loan Forgiveness program, why administrative action that reduces outstanding student debt can unlawfully diminish that congressionally granted subsidy, and how Supreme Court precedent—most notably Clinton v. City of New York—supports the theory that loss of a subsidy is a concrete injury.Mark, John, and Russ also unpack the judges’ questions at oral argument, the Sixth Circuit’s prior rulings, and why this case could clarify when organizations may challenge executive actions that override Congress’s spending decisions.

In this episode of Unwritten Law, Mark Chenoweth and John Vecchione are joined by NCLA Of Counsel Margot Cleveland to discuss one of NCLA’s most consequential ongoing cases: Davidson v. Adkins, a constitutional challenge to the SEC’s Consolidated Audit Trail (CAT).The CAT requires broker-dealers to collect and transmit detailed data on virtually every stock trade in the United States, creating a massive government-accessible database of Americans’ financial activity. Margot explains why recent changes announced by the SEC—such as removing names but retaining identifying numbers—do not cure the Fourth Amendment problem, and why suspicionless, warrantless searches of stock-trading data resemble the general warrants the Constitution was designed to forbid.The episode also examines the SEC’s repeated requests for delays while the program continues to operate, the lack of congressional authorization or appropriation for CAT, related rulings from the Eleventh Circuit, and the broader dangers of mass financial surveillance for privacy, free association, and constitutional limits on agency power.

In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione discuss John’s recent oral argument at the U.S. Court of Appeals for the Fifth Circuit in Word v. Department of Energy.Bill Word and David Daquin both own a dishwasher and a washing machine that they want to replace. The U.S. Department of Energy has imposed regulations in 2012 and 2024 illegally limiting how much water dishwashers and washing machines can use. The appliances Word and Daquin want to buy use more water than those regulations allow. But under the amended Energy Policy and Conservation Act of 1975, the Department of Energy can only regulate water use in “faucets, showerheads, water closets and urinals”.The conversation also explores a key procedural question: where regulated parties can seek meaningful relief when an agency repeatedly issues unlawful rules, and whether district courts must be able to issue injunctions to stop ultra vires agency action. Along the way, Mark and John reflect on the Fifth Circuit’s prior rulings, post-Loper Bright limits on agency power, and why congressional action—not bureaucratic improvisation—is the proper way to regulate.

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione and NCLA President Mark Chenoweth discuss a major development in NCLA’s challenge to a federal rule requiring fishermen to pay for government monitors placed on their boats—despite no clear statutory authorization.After a district court upheld the rule using a theory that conflicts with the Supreme Court’s decision in Loper Bright, NCLA appealed to the First Circuit. Now, seven separate amicus briefs—from across the legal and ideological spectrum—have weighed in, each highlighting a different flaw in the district court’s analysis.John and Mark walk through the most compelling arguments from the amici, including post-Loper Bright de novo review, the misuse of “necessary and appropriate” authority, clear-statement rules, the Major Questions Doctrine, constitutional limits on agency power, and why reviving Chevron-era reasoning under new labels is not permissible.

What happens when a state or local police officer violates someone’s constitutional rights—and courts say there’s no practical way to sue?In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Casey Norman to discuss Mohamud v. Weyker (No. 25-760), now at the U.S. Supreme Court.NCLA’s amicus brief explains that multiple courts have recognized Officer Heather Weyker (a St. Paul police officer) abused her authority by fabricating allegations against Hamdi A. Mohamud and at least 30 other people—conduct the brief describes as “framing” that led to Mohamud’s incarceration for over two years. Yet the Eighth Circuit held Mohamud cannot sue Weyker under 42 U.S.C. § 1983 because Weyker was also cross-deputized for a federal task force—treating the conduct as federal in nature and shutting the courthouse door.The episode also explains why this accountability gap is especially dangerous after Egbert v. Boule, which largely eliminated Bivens remedies for most plaintiffs—making § 1983 often the only viable path for damages when cross-deputized officers violate constitutional rights.

In this episode of Unwritten Law, Mark Chenoweth and John Vecchione break down the Supreme Court’s oral argument in Trump v. Cook, a case that puts presidential power, Federal Reserve independence, and the meaning of “for cause” removal squarely before the Court.The discussion explores why the Justices appeared unusually skeptical of the government’s position, how the case arrived on the emergency docket, and whether a president must provide notice or a hearing before removing a Federal Reserve governor. Mark and John examine the distinction between the Fed’s interest-rate authority and its regulatory power, debate whether pre-appointment conduct can justify removal, and unpack the broader separation-of-powers implications.If the Court limits the president here, does it invite a direct constitutional challenge to “for cause” protections? And what does this case signal about how the Court views executive control over independent agencies? A lively, substantive conversation about one of the most surprising Supreme Court arguments of the term.

In this episode of Unwritten Law, Mark Chenoweth and John Vecchione are joined by Peggy Little, Senior Litigation Counsel at NCLA, to discuss one of the most consequential cases in the organization’s docket: Davidson, et al. v. Atkins, a constitutional challenge to the SEC’s Consolidated Audit Trail (CAT).The CAT is a massive nationwide database that collects and stores every stock trade made by every American investor, without suspicion, clear statutory authorization, or congressional appropriation. Peggy explains why this dragnet surveillance raises serious Fourth and Fifth Amendment concerns, threatens the security of Americans’ financial data, and unlawfully shifts billions of dollars in costs onto investors.The discussion covers:Why the SEC lacks statutory authority to create and operate the CATHow mass financial data collection implicates constitutional privacy protectionsThe dangers of delaying judicial review while unconstitutional conduct continuesWhy agencies cannot be allowed to “think about fixing” violations while rights are being infringedThis episode explains why Davidson, et al. v. Atkins is not just about securities regulation, but about the constitutional limits of agency power — and why courts must intervene.

In this episode of Unwritten Law, John Vecchione and Mark Chenoweth unpack the latest chapter in Relentless, Inc. v. Department of Commerce, a case that sits at the crossroads of administrative power, statutory interpretation, and life after Chevron deference.The conversation focuses on whether federal agencies can require regulated parties — here, commercial fishermen — to pay for government-mandated monitors placed on their boats, even when Congress never clearly authorized those costs. John explains why a Rhode Island district court relied on a so-called “default norm” to uphold the rule, and why that reasoning conflicts with the Supreme Court’s rejection of Chevron in Loper Bright.Mark and John walk through the Magnuson-Stevens Act, highlighting where Congress explicitly authorized industry-funded observers — and where it did not. They also explore the constitutional stakes: who decides who pays, why funding power belongs to Congress, and what happens when agencies effectively fund themselves through regulation.The episode offers a clear look at how unelected bureaucrats expand power, why statutory text still matters, and what this case could mean for administrative law after Chevron.

In this episode of Unwritten Law, Mark Chenoweth and John Vecchione are joined by Peggy Little, Senior Litigation Counsel at NCLA, to discuss NCLA’s amicus brief in Media Matters v. Federal Trade Commission, currently before the U.S. Court of Appeals for the D.C. Circuit.The conversation focuses on the FTC’s use of civil investigative demands (CIDs) and a fundamental constitutional question: must individuals and organizations have access to an independent court before complying with sweeping agency demands? Peggy explains why allowing agencies to issue broad investigative orders without meaningful judicial review threatens First Amendment rights of speech and association.Drawing on Supreme Court precedents including NAACP v. Alabama, Americans for Prosperity Foundation v. Bonta, Axon Enterprise v. FTC, and SEC v. Jarkesy, the episode examines why constitutional challenges cannot be forced through agency-controlled processes. The hosts also discuss the dangers of agencies “holding the keys to the courthouse,” the structural bias built into self-review, and how repeated investigative demands can be used to pressure or dismantle organizations without ever filing charges.

Chevron deference may be gone—but is the Supreme Court quietly laying the groundwork for something even worse?In this episode of Unwritten Law, Mark Chenoweth and John Vecchione examine a recent Supreme Court decision that could dramatically reshape administrative law. Drawing on analysis by Will Yeatman, they discuss how the Court’s handling of VanDerStok risks giving agencies a powerful new shield by treating challenges to regulations as “facial” attacks—making them nearly impossible to win.The conversation dives into why this approach departs from traditional administrative-law principles, how lower courts may use it to avoid meaningful judicial review, and why this decision could become a dangerous tool for future administrations—regardless of political party.If you care about limits on bureaucratic power, the future of post-Chevron litigation, or the proper role of courts in reviewing agency action, this episode explains why VanDerStok is an issue worth watching closely.

As the nation approaches the 250th anniversary of the Declaration of Independence, the Chief Justice of the United States reflects on America’s founding principles in his annual Year-End Report on the Federal Judiciary. But what does that report really say about the state of the Supreme Court today?In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione unpack Chief Justice Roberts’s historical reflections, his views on the Declaration of Independence, and what judicial independence truly means in modern constitutional law. They explore whether the Declaration is merely “ancillary” or something closer to law itself—and why that debate matters.The discussion also turns to a persistent frustration: the Supreme Court’s shrinking docket. With filings down and opinions limited, Mark and John ask whether the Court is failing to address critical legal questions that affect Americans’ daily lives—and what consequences follow when major precedents are left to “fester” in the lower courts.

In this episode of Unwritten Law, Mark Chenoweth and John Vecchione dig into a major new essay by R.J. Pestritto, Senior Fellow at the Claremont Institute, titled “Government by the Unelected: How It Happened and How It Might Be Tamed.”https://dc.claremont.org/government-by-the-unelected-how-it-happened-and-how-it-might-be-tamed/The discussion traces the intellectual and legal origins of the modern administrative state — from Progressive-era theory and Woodrow Wilson, through the New Deal, the rise of Chevron deference, and decades of judicial decisions that insulated federal agencies from democratic control. Mark and John explain how ideas developed in academia slowly reshaped constitutional doctrine, allowing unelected bureaucrats to accumulate legislative, executive, and judicial power.The episode also examines how recent Supreme Court decisions — including Loper Bright, Corner Post, Jarkesy, and ongoing removal-power cases — may signal a turning point. Together, these cases suggest a rebalancing of constitutional authority: less deference to agencies, greater accountability to the President, and renewed pressure on Congress to legislate rather than delegate.This conversation offers a clear, accessible explanation of how we got here, why the administrative state became untethered from the Constitution, and what it will take to restore democratic accountability.

Why are the Little Sisters of the Poor still being dragged into court over the Affordable Care Act’s contraception mandate—years after the Supreme Court ruled in their favor?On this episode of Unwritten Law, Mark Chenoweth and John Vecchione are joined by NCLA Senior Litigation Counsel Andy Morris to discuss a newly filed amicus brief at the U.S. Court of Appeals for the Third Circuit in Pennsylvania & New Jersey v. Trump. The case challenges religious exemptions that protect the Little Sisters, Catholic nuns who object to being forced to provide contraception coverage.The conversation explores how federal agencies imposed the mandate without clear congressional authorization, why Pennsylvania and New Jersey are suing to eliminate long-standing religious exemptions, and how the case exposes serious constitutional problems—including lack of standing, agency overreach, and violations of the nondelegation doctrine.At its core, this episode explains why vague laws and unchecked bureaucratic power threaten religious liberty and the separation of powers—and why courts should put an end to litigation that never should have continued.Unwritten Law examines how unwritten rules, agency actions, and judicial shortcuts quietly reshape the law—often without the consent of the governed.

In this episode of Unwritten Law, Mark Chenoweth and John Vecchione are joined by Andreia Trifoi to discuss NCLA’s constitutional challenge to the City of Marco Island’s use of automatic license plate readers (ALPRs) — a surveillance system that records and stores the movements of every driver entering or leaving the island.Because Marco Island has only three bridges, residents are photographed and tracked multiple times a day, with their location data retained for years and potentially shared with other agencies or private companies. The hosts explain why this dragnet surveillance goes far beyond ordinary police observation and raises serious Fourth Amendment concerns.This episode explores how emerging surveillance technology is testing the limits of constitutional privacy — and why courts must confront these questions before mass tracking becomes the norm.

In this follow-up episode of Unwritten Law, Mark Chenoweth and John Vecchione continue their deep dive into the Supreme Court’s oral argument in Trump v. Slaughter, focusing on key issues that received less attention in Part I — but may prove just as consequential.The conversation explores whether there is any meaningful constitutional distinction between criminal and civil enforcement, and why several justices appeared skeptical of claims that civil enforcement power is somehow “less executive.” The hosts explain why allowing independent agencies like the FTC and SEC to prosecute their own civil cases — outside the Department of Justice — raises serious accountability and separation-of-powers concerns.

Just days after oral argument, Unwritten Law hosts Mark Chenoweth and John Vecchione break down one of the most consequential separation-of-powers cases in decades: Trump v. Slaughter.At stake is Humphrey’s Executor, the 1935 Supreme Court decision that allowed Congress to insulate powerful federal regulators from presidential control. If overturned, the ruling could fundamentally reshape the modern administrative state.Mark and John walk through the justices’ questions, the strengths and weaknesses of the arguments on both sides, and why several members of the Court appear ready to rethink nearly a century of doctrine.This episode offers a clear, candid look at how the Court may redraw the constitutional boundaries of executive power — and what that means for self-government in America.

In this episode, Mark Chenoweth and John Vecchione sit down with NCLA Litigation Counsel Casey Norman to break down a major regulatory win: stopping FERC’s sweeping “Duty of Candor” rule before it ever hit the books. The proposed rule would have allowed the Federal Energy Regulatory Commission to punish any speaker — from corporations to ordinary citizens — for any statement, email, or phone call the agency deemed “false,” “misleading,” or missing “material information,” with no mens rea requirement and no defined limits.Casey walks through why this vague, overbroad rule was a First Amendment disaster waiting to happen; how it risked chilling public debate on energy and environmental policy; and how NCLA’s detailed comments helped persuade FERC to scrap the rule entirely. The team also explores how the proposal fit into a broader pattern of government attempts to police “truth,” and why regulatory speech controls should worry everyone.It’s a rare victory in the world of administrative rulemaking — and a reminder that sometimes the best lawsuit is the one you never have to file.

In this episode, Casey Norman joins Mark Chenoweth and John Vecchione to unpack BASE Access, et al. v. National Park Service, a remarkable case about whether a federal agency can criminalize BASE jumping in national parks without any clear authorization from Congress. For nearly 50 years, the National Park Service has treated BASE jumping as a crime—even though the regulation they rely on was written in the 1950s to prevent cargo drops, not recreational jumping.Casey explains the nondelegation challenge, the vagueness problem, the strange double standard with hang gliding, and why a federal judge in Houston is pressing the government to rethink its outdated criminal rules. If you care about the Constitution, criminal law, or just enjoy wild outdoor sports, this episode has something for you.

Senior Litigation Counsel Russ Ryan joins Mark Chenoweth and John Vecchione to break down Barton v. SEC, a newly filed cert petition that challenges the SEC’s practice of using court-appointed receivers to seize assets, run companies, and even sue third parties—all without clear statutory authority. Russ explains how these ad-hoc receiverships raise serious Appointments Clause, separation-of-powers, bankruptcy-evasion, and Sixth Amendment concerns, and why the Supreme Court should put a stop to this shadow system. A deep dive into one of the most under-scrutinized abuses in federal enforcement.

In this episode of Unwritten Law, Mark Chenoweth and John Vecchione welcome Margot Cleveland to unpack the Supreme Court case Trump v. Slaughter, a historic challenge to whether the President can remove commissioners of the Federal Trade Commission at will.They walk through the key amicus briefs, Professor Caleb Nelson’s arguments, and Philip Hamburger’s response in the Yale Journal on Regulation emphasizing the Constitution’s unitary executive structure. The trio also discuss the foreign-policy powers exercised by modern independent agencies and why the Court may finally be ready to overturn Humphrey’s Executor. A deep dive into one of the most important separation-of-powers cases of the term.

Mark Chenoweth and John Vecchione recap the 2025 Federalist Society National Lawyers Convention, offering candid insight into what made this year’s gathering different. From Judge Andy Oldham’s powerful Barbara Olson Lecture to unexpected debate pairings and shifts in programming philosophy, they break down where the convention excelled — and where it missed opportunities.They discuss the tension between staging debates for show versus digging into substantive legal questions, the increasing presence of younger speakers, the lack of deep dives on topics like tariffs and administrative overreach, and the overall feel of the event’s intellectual energy. Mark and John also highlight memorable moments, including the conversation with Justices Barrett and Kavanaugh, Steve Bradbury’s Department of Transportation panel, and a compelling discussion on free speech rights for non-citizens.A mix of recap, critique, and commentary, this episode gives listeners an insider’s view of how the conservative legal movement’s biggest annual gathering is evolving in 2025.

John Vecchione sits down with Kara Rollins to explore her recent piece in the Yale Journal on Regulation titled “Necessary” Discretion: A Primer for Non-Lawyers. They delve into what it really means when legislatures grant agencies the authority to act when something is “necessary,” how courts interpret these trigger‐words, and why this matters for administrative power. From the Spending Clause to rule‐making, this conversation breaks down complex doctrine in plain terms and shows how “necessary” might mean more than you think.

Senior Litigation Counsel Margaret Harker joins Mark Chenoweth and John Vecchione to unpack the House Oversight Committee’s auto-pen investigation — a 100-page probe that raises serious questions about President Biden’s cognitive fitness, missing decision records, and last-minute pardons allegedly authorized via an auto-pen rather than by the President himself. They discuss the committee’s referral to the Department of Justice, the legal issues around voiding pardons, and why the report’s findings matter for presidential accountability and the rule of law.

Mark Chenoweth and John Vecchione welcome NCLA Senior Litigation Counsel Russ Ryan for a jaw-dropping judicial-ethics cases.A Texas judge—currently presiding over a live case—has written three novels featuring characters bearing striking resemblance of herself and on one of the actual litigants before her. The fictional version of the real-life businessman is cast as a villain.The case is Dondero v. Jernigan, raising fundamental questions about impartiality.Russ walks through the surreal facts and NCLA’s concise but impactful amicus brief urging the Court to fix the problem.This is an episode you do not want to miss.

Fresh from the Supreme Court, Mark Chenoweth, John Vecchione, and Andy Morris break down oral arguments in the Trump tariffs case — a landmark challenge over whether the president can impose tariffs under the International Emergency Economic Powers Act (IEEPA).John and Andy share what they saw in the courtroom, how the justices responded, and why this case could redefine the limits of executive authority. From Justice Kagan’s sharp textual questions to Justice Kavanaugh’s deference to presidential power, the episode captures the day’s biggest moments — and what they reveal about the future of constitutional checks and balances.

In this episode of Unwritten Law, Mark Chenoweth and John Vecchione welcome NCLA’s new Senior Litigation Counsel, Jacob Huebert, to unpack Trump v. Cook — a landmark Supreme Court case testing whether the president can fire a Federal Reserve governor at will. They dive into the constitutional roots of Article II, what it means for presidential authority, and why the Fed’s independence might not be as untouchable as some believe.

The Supreme Court is set to hear Trump v. Slaughter, a landmark case that could finally overturn Humphrey’s Executor—the 1935 decision that created “independent” federal agencies beyond presidential control. Mark Chenoweth and John Vecchione are joined by NCLA’s Margot Cleveland, principal author of NCLA's amicus brief, to explain why this case could restore accountability to the executive branch and rein in the modern administrative state. From the origins of the FTC to the constitutional power of removal under Article II, this episode unpacks how the Court’s decision could reshape the balance of power in Washington.

Mark Chenoweth and John Vecchione are joined by NCLA’s Andy Morris to discuss one of the most consequential Supreme Court cases of the term — whether the president can impose tariffs under the International Emergency Economic Powers Act (IEEPA). They unpack the history of emergency powers, Congress’s exclusive authority to levy taxes, and how past presidents have tested these limits.From Roosevelt’s bank closures to Trump’s trade wars, this episode explores why the Constitution clearly puts tariff authority in Congress’s hands — not the Oval Office.

In part two of Unwritten Law’s conversation with John Malcolm and Professor Josh Blackman, hosts Mark Chenoweth and John Vecchione explore the deeper substance of The Heritage Guide to the Constitution, Third Edition. The group discusses Justice Samuel Alito’s foreword, the “Mount Rushmore of Originalism,” and the evolution of constitutional thought from the Founding era to today. From the confrontation clause to the 27th Amendment, the conversation highlights surprising insights and little-known historical details that shaped our understanding of America’s founding document.A must-listen for anyone passionate about originalism, constitutional history, and the ongoing effort to keep the meaning of the Constitution alive and clear.