Unwritten Law

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.