Loper Bright Keeps Reshaping Agency Power

SCOTUS Special (Part 2): The Federal Reserve Exception?

Part 2 of our Supreme Court Special. In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by NCLA Senior Litigation Counsel Jacob Huebert to examine the Supreme Court's decision in Trump v. Cook and what it means for the Federal Reserve and presidential removal power. Although the Court's decision in Trump v. Slaughter significantly expanded the President's authority to remove executive officers, Trump v. Cook stopped short of applying that reasoning to the Federal Reserve. Jacob explains why the Court emphasized the Federal Reserve's unique historical role, how Chief Justice Roberts relied on history and tradition, and why the Justices treated monetary policy differently from other executive functions. The discussion explores the government's arguments, standing, the Court's emergency-docket analysis, Justice Thomas's separate writing, and why Myers, Humphrey's Executor, and the First and Second Banks of the United States all played an important role in the Court's reasoning. Mark, John, and Jacob also discuss what constitutional questions remain unresolved, whether the Federal Reserve's regulatory powers could still face future challenges, and why Trump v. Cook may not be the final word on presidential control over independent agencies.

SCOTUS Summer Series (Part 1): The End of Humphrey's Executor

In this special Supreme Court edition of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by NCLA Of Counsel Margot Cleveland to discuss the Supreme Court's landmark decision in Trump v. Slaughter. The Court's decision effectively ends Humphrey's Executor, the 1935 precedent that limited the President's authority to remove leaders of independent agencies such as the Federal Trade Commission. Margot, who authored NCLA's amicus brief supporting the President's position, explains why the decision represents one of the Court's most significant separation-of-powers rulings in decades. The discussion explores how the Court built on earlier decisions such as Seila Law, why Chief Justice Roberts described Myers v. United States as the foundational precedent for presidential removal authority, and what the decision means for the future of the administrative state. Mark, John, and Margot also examine Justice Gorsuch's concurrence, severability, the unresolved questions surrounding the Federal Reserve and the civil service, and why the Court appears to be methodically restoring presidential control over executive officers. The episode concludes with a look ahead at the next constitutional battles likely to follow in the wake of Trump v. Slaughter.

Justice Thomas's Warning to Federal Agencies

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by Staff Counsel Christian Clase to discuss a remarkable concurrence by Justice Clarence Thomas in a recent Supreme Court case involving Roundup, pesticide regulation, and federal preemption. Although the Court's decision focused on whether federal law preempts state-law failure-to-warn claims, Justice Thomas used his concurrence to highlight a much broader set of constitutional concerns. His opinion raises questions about Congress's Commerce Clause authority, the constitutionality of broad delegations of power to administrative agencies, and whether federal agency actions should be capable of preempting state law at all. John and Christian examine Thomas's critique of modern administrative governance, including his concern that agencies can effectively create rules carrying civil and criminal consequences while exercising powers traditionally reserved to Congress. The discussion also explores Thomas's argument that agency action does not fit neatly within the Constitution's Supremacy Clause, why he views administrative preemption as constitutionally suspect, and how his opinion may serve as a roadmap for future constitutional challenges. The episode offers a deep dive into one of the most important administrative law concurrences of the term and what it could mean for the future of agency power.

SCOTUS Rejects Hawaii's Gun Rights Workaround

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by Litigation Counsel Jacob Huebert to discuss the Supreme Court's decision in Wolford v. Lopez, a significant Second Amendment case arising from Hawaii. After the Supreme Court's landmark decision in Bruen, Hawaii enacted a law making it a crime to carry a firearm on private property open to the public unless the property owner expressly consented. The Supreme Court recently rejected that approach, concluding that Hawaii's law lacked historical support and effectively undermined the right to carry recognized in Bruen. John and Jacob discuss the Court's reasoning, Justice Alito's concurrence, the debate over historical analogues such as Reconstruction-era Black Codes, and why constitutional rights cannot vary based on what one court called the "spirit of aloha." The conversation also explores what the decision could mean for NCLA's challenge to Illinois' Firearm Owner's Identification (FOID) card system in Laurent v. Kelly. Jacob explains why Illinois similarly flips the normal presumption of constitutional rights by requiring citizens to obtain government permission before possessing a firearm—even in their own homes. The episode highlights the Supreme Court's renewed attention to Second Amendment cases and why recent decisions may strengthen challenges to laws that condition constitutional rights on prior government approval.

The SEC Case That Could Expand Jury Trial Rights

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by Senior Litigation Counsel Russ Ryan to discuss Smith v. SEC, a case raising fundamental questions about jury trial rights, administrative adjudication, and constitutional exhaustion requirements. The case began more than a decade ago when FINRA initiated an investigation into George Smith. After years of proceedings before FINRA and the SEC, Smith challenged the process itself, arguing that he was entitled to have his case heard in an Article III court before a jury rather than through an administrative enforcement system. Russ explains how a Sixth Circuit panel recently suggested that Smith's constitutional arguments may have substantial merit—but nevertheless ruled against him on the ground that he failed to raise those arguments before the SEC itself. The discussion explores why agencies lack expertise and authority to resolve constitutional questions, how recent Supreme Court decisions such as Axon, Cochran, and Free Enterprise Fund bear on the issue, and why forcing litigants to exhaust constitutional claims before agencies creates a procedural trap. John and Russ also discuss the amicus briefs supporting rehearing, including filings from the Pacific Legal Foundation, the New Civil Liberties Alliance's allies in the administrative law space, and a brief submitted on behalf of entrepreneur Mark Cuban. The episode highlights broader questions about due process, administrative power, and whether Americans can truly be said to have "waived" constitutional rights by failing to raise them before agencies that have no power to grant relief.