The Fight Over Who Decides Constitutional Claims

The Fight Over Who Decides Constitutional Claims

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 Alana Black to discuss NCLA's amicus brief in Johnson v. United States Congress, a case asking whether constitutional challenges to federal statutes must be heard by Article III courts. The case involves a disabled veteran challenging a federal law affecting veterans benefits. Rather than allowing his constitutional claims to proceed in federal district court, lower courts relied on the Supreme Court's Thunder Basin and Elgin precedents to route the dispute through an administrative review process. Alana explains why NCLA believes those precedents are inconsistent with Congress's longstanding practice of ensuring that constitutional challenges to federal laws receive direct judicial review. Drawing on more than a century of statutory history, she shows how Congress repeatedly treated constitutional challenges as a special category of cases deserving heightened judicial attention—not administrative adjudication. The discussion also explores the relationship between Thunder Basin, Axon, Cochran, Loper Bright, and Relentless, as well as broader questions about separation of powers, judicial authority, and whether administrative tribunals should play any role in deciding constitutional claims.

Did the SEC Repeal Its Gag Rule to Avoid SCOTUS?

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth, Senior Litigation Counsel John Vecchione, and Senior Litigation Counsel Peggy Little discuss NCLA's reply brief in Powell v. SEC, the case challenging the SEC's decades-old gag rule. Although the SEC recently rescinded the rule that prohibited settling defendants from publicly denying the agency's allegations, Peggy explains why the case is far from over. Thousands of existing gag orders remain in place, courts may still enforce them, and future administrations could reinstate similar restrictions at any time. The discussion explores the legal doctrine of voluntary cessation, why agencies should not be able to evade judicial review by temporarily changing course, and why NCLA believes the Supreme Court should still hear the case. Peggy also highlights a surprising development: shortly after the SEC repealed its rule, the CFTC repealed its nearly identical gag rule as well. Mark, John, and Peggy examine the broader implications for free speech, government accountability, and the First Amendment rights of Americans who settled with regulators but remain unable to publicly challenge the allegations against them. With the case scheduled for Supreme Court conference on June 25, the episode offers an inside look at one of the most important First Amendment battles involving the administrative state.

Can Congress Let EPA Pick Winners and Losers?

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth, Senior Litigation Counsel John Vecchione, and General Counsel Zhonette Brown discuss NCLA's recently filed reply brief in Choice Refrigerants v. EPA, a case asking the U.S. Supreme Court to revisit the nondelegation doctrine. The conversation focuses on a fundamental constitutional question: Can Congress hand an agency virtually unlimited discretion to decide which companies receive valuable market allocations—and which do not? Zhonette explains why the government's response brief and supporting industry briefs point to different alleged "intelligible principles," highlighting what NCLA argues is the complete absence of any meaningful statutory guidance. The discussion also explores why notice-and-comment rulemaking is not a substitute for legislative accountability and why decisions affecting entire industries should be made by Congress—not unelected administrators. Mark, John, and Zhonette also compare the case to other recent Supreme Court administrative law decisions, discuss the support of 21 states and numerous public-interest organizations, and explain why they believe Choice Refrigerants presents an ideal vehicle for the Court to strengthen the nondelegation doctrine. With the petition scheduled for the Supreme Court's June 18 conference, the episode offers an inside look at one of NCLA's most significant constitutional cases.

A Tale of Two Judicial Discipline Cases

Why did one federal judge receive only a reprimand after engaging in sexual activities in her chambers, while Federal Judge Pauline Newman remains sidelined after more than three years — with no judicial review of her suspension, despite no findings of misconduct and passing 3 mental fitness tests from 3 different doctors? In this episode of Unwritten Law, Mark Chenoweth and John Vecchione discuss a recent judicial misconduct case that has prompted new scrutiny of the federal judiciary's internal disciplinary process. The discussion explores: * A federal judge who received a private reprimand after misconduct findings * Why the judge was allowed to continue hearing cases * How that outcome compares to Judge Pauline Newman's ongoing suspension * The role of judicial councils in disciplining federal judges * Concerns about transparency, accountability, and consistency * Why legal commentators across the ideological spectrum have questioned the result Mark and John also examine what these cases reveal about administrative processes within the judiciary and whether reforms may be needed to restore public confidence.

The Licensing Board That Ignored Due Process

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 Casey Norman to discuss Kurtin v. South Carolina Department of Labor, a case challenging an extraordinary series of procedural abuses by a state licensing board. NCLA is challenging the South Carolina Real Estate Board’s unlawful sanctions against certified residential appraiser Joseph Kirton. Casey explains how the board pursued charges based on standards it had not yet adopted, introduced new allegations during the hearing itself, relied on a substitute investigator who had no involvement in the original investigation, refused access to key documents, and claimed that statutes of limitations did not apply to its proceedings. The discussion also explores broader constitutional issues raised by administrative licensing boards, including notice, fairness, retroactive enforcement, jury trial rights, and the danger of allowing agencies to serve as investigator, prosecutor, and adjudicator all at once. Mark, John, and Casey examine why this case could have implications far beyond South Carolina and why professionals across the country should pay attention.