Unwritten Law

A small North Dakota gas station challenged a Federal Reserve regulation that had been on the books before the business even existed. After winning a landmark Supreme Court ruling in 2024, Corner Post's challenge has now resulted in another major victory.

The U.S. Court of Appeals for the Eighth Circuit affirmed a lower court ruling invalidating the Federal Reserve's debit-card interchange fee cap because the agency failed to follow the limits Congress established.

On this episode of Unwritten Law, Mark Chenoweth and John Vecchione welcome NCLA Senior Litigation Counsel Kara Rollins to discuss the latest development in Corner Post v. Board of Governors of the Federal Reserve System.

They explain how debit-card transaction fees work, why the Federal Reserve exceeded its statutory authority, and how the Supreme Court's decisions in Corner Post and Loper Bright are reshaping challenges to federal regulations.

The discussion also examines a troubling trend: After the Supreme Court overturned Chevron deference, federal agencies have increasingly defended their regulatory authority by claiming broad discretion instead.

The central principle is simple: Congress writes the laws. Agencies must follow them.

Can government officials effectively increase someone's prison sentence through guidance that never went through the same approval process as the law itself?

That's the issue at the heart of Beaird v. United States, a case recently argued before the U.S. Supreme Court.

Federal judges use sentencing guidelines to determine the appropriate punishment for criminal offenses. But under a legal doctrine known as Stinson deference, judges must also defer to the Sentencing Commission's commentary interpreting those guidelines—even though that commentary does not necessarily undergo public review or the same congressional oversight as the guidelines themselves.

And those interpretations can mean more time behind bars.

On this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione welcome Senior Litigation Counsel Kara Rollins to discuss the Supreme Court's oral arguments and NCLA's amicus brief opposing Stinson deference.

They explore why the Justices appeared more divided than expected, how sentencing commentary can affect prison terms, and whether the Court's eventual decision could weaken the principles established in Loper Bright, which overturned Chevron deference.

When someone's freedom is on the line, should judges independently interpret the law—or defer to an unelected commission's commentary?

A longtime Washington lobbyist raises concerns with a federal agency, takes those concerns to the White House, and nearly a year later finds himself banned from the agency's offices.

The Consumer Product Safety Commission (CPSC) labeled Edward Krenik a “credible threat” to agency personnel and operations, but according to NCLA's lawsuit, never explained what he supposedly did to deserve the ban or gave him an opportunity to defend himself.

On this episode of Unwritten Law, NCLA's John Vecchione and Mark Chenoweth welcome Senior Litigation Counsel Kara Rollins to discuss Krenik v. Feldman, NCLA's new lawsuit challenging the agency's actions.

They examine Krenik's First Amendment rights to free speech and to petition the government, the possibility of retaliation for his advocacy, and the serious consequences the ban has had for his livelihood.

Can a federal agency shut someone out simply because it doesn't like what he has to say?

Can the president fire a federal prosecutor appointed by judges?

That's the constitutional question at the center of Trump v. Rogoff, a dispute now before the U.S. Court of Appeals for the Ninth Circuit.

After federal judges appointed Roger Rogoff as U.S. Attorney for the Western District of Washington, President Trump fired him less than an hour later. Rogoff sued, arguing that the president lacked the authority to remove a court-appointed prosecutor. A district court granted a preliminary injunction in Rogoff's favor, but the Ninth Circuit stayed that order while the appeal proceeds.

On this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione welcome Senior Litigation Counsel Jacob Huebert to discuss NCLA's newly filed amicus brief.

NCLA argues that the president has the constitutional authority to remove U.S. attorneys, regardless of who appointed them. The brief also raises a broader constitutional concern: whether federal judges should be appointing executive-branch prosecutors in the first place.

Mark, John, and Jacob examine the Supreme Court's recent Trump v. Slaughter decision, the separation of powers, the role of the Senate in confirming federal prosecutors, and why this dispute could have implications far beyond Washington State.

Can the government deny you a jury trial—and then refuse to let you challenge that denial in federal court?

NCLA is asking the Supreme Court to hear Smith v. SEC, a case challenging the constitutional limits of administrative adjudication and the procedural barriers that can prevent Americans from asserting their rights.

On 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 the newly filed Supreme Court cert petition.

NCLA client Eric Smith was sanctioned through a FINRA disciplinary proceeding without a jury or an Article III judge. The SEC subsequently affirmed the sanctions after years of delay.

When Smith sought review in the Sixth Circuit, NCLA argued that the proceedings violated constitutional protections recognized by the Supreme Court in SEC v. Jarkesy. But the appeals court declined to consider the constitutional challenge because Smith had not first presented it to the SEC.

NCLA is asking the Supreme Court to resolve disagreements among federal appeals courts over whether Americans must raise structural constitutional objections before administrative agencies—and whether they can be excused from doing so when the agency has already made clear that the argument would be futile.

Mark, John, and Russ explain why this dispute matters far beyond Eric Smith, why administrative agencies should not be the gatekeepers of constitutional challenges to their own proceedings, and what happens next as NCLA asks the Justices to hear the case.

What happens when a federal investigator secretly obtains a U.S. senator's phone records—and prevents her from challenging the search?

NCLA has filed a lawsuit on behalf of Senator Marsha Blackburn against former Special Counsel Jack Smith, challenging his acquisition of her telephone records during the Arctic Frost investigation.

On this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by NCLA attorney Caitlin Moyna to discuss the lawsuit, the constitutional protections at stake, and the extraordinary circumstances surrounding the subpoenas.

According to NCLA's complaint, Smith sought telephone records belonging to members of Congress, identifying the targets by their phone numbers rather than their names. His team also obtained nondisclosure orders preventing telephone providers from alerting anyone about the subpoenas. NCLA alleges that investigators failed to tell the court that the records belonged to sitting members of Congress.

The lawsuit argues that these actions violated the Constitution's Speech or Debate Clause, which protects legislative independence from executive interference, as well as the Fourth Amendment. NCLA also challenges the constitutionality of Smith's appointment as Special Counsel.

John and Caitlin discuss why these protections matter, what newly disclosed documents suggest about the government's awareness of congressional privileges, and why Senator Blackburn is seeking accountability rather than a large monetary award.

They also explain an unusual development: all four district judges in the Middle District of Tennessee have recused themselves from the lawsuit.

At stake is a fundamental question about separation of powers: Can executive-branch investigators circumvent constitutional protections designed to safeguard Congress from government interference?

After more than three years, Judge Pauline Newman's judicial conduct and disability proceeding has been transferred out of the Federal Circuit.

It's a significant and unprecedented development in a case that NCLA has been fighting since 2023.

On this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione and Andy Morris discuss the newly disclosed order from Eleventh Circuit Chief Judge William Pryor confirming that Judge Newman's proceeding has been transferred to the Eleventh Circuit.

Judge Newman has sought a transfer since April 2023, arguing that judges involved in the controversy should not adjudicate the proceeding themselves. Now, after multiple orders, suspensions, and years of litigation, a different judicial council will handle the matter.

John and Andy explain:

• Why Judge Newman sought a transfer in the first place
• What the Eleventh Circuit's new order reveals
• Why a transfer after more than three years is unprecedented
• What remains confidential about the proceeding
• Why Judge Newman requested broader public disclosure
• What the transfer means for the next phase of her case
• Why this development does not yet change her status on the bench

The transfer raises important questions about judicial impartiality, accountability, and the procedures used to investigate federal judges.

What happens next for Judge Newman? John and Andy explain what they can—and cannot—say about this major development.

Subscribe to Unwritten Law for updates on this case and NCLA's work defending constitutional rights.

What happens when a federal agency publicly declares a product unsafe—but can't adequately explain the evidence behind that declaration?

NCLA has secured an important ruling for Dreamland Baby Company in its challenge to the Consumer Product Safety Commission.

On this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth is joined by Senior Litigation Counsel Kara McKenna Rollins to discuss the latest decision in Dreamland Baby Company v. Consumer Product Safety Commission.

Dreamland makes weighted infant sleep products. CPSC publicly warned consumers against using such products, a declaration with potentially devastating consequences for a company selling products for babies. Dreamland challenged the agency, arguing that its statements were inaccurate and misleading and weren't supported by the available data.

The agency fought to prevent judicial review of its action. The court rejected that position. And when it examined what CPSC had actually considered, it found the record insufficient to evaluate the agency's decision and sent the matter back to CPSC for further consideration.

Mark and Kara discuss what the ruling means for Dreamland, why agencies shouldn't be able to sidestep statutory procedures through public warnings, and why government safety pronouncements should be grounded in transparent evidence and data.

The SEC's Consolidated Audit Trail collects information on virtually every stock-market transaction in the United States, creating an enormous database that regulators can search for suspicious activity without first identifying a particular person or crime.

NCLA has long argued that this mass collection and searching of Americans' financial information violates the Fourth Amendment. Now, a new Supreme Court decision could strengthen that challenge.

On this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Margot Cleveland to discuss the Supreme Court's recent decision in Chatrie v. United States and its implications for NCLA's CAT challenge, Davidson v. SEC.

In Chatrie, the Supreme Court held that the government's use of Google's location database to identify people near the scene of a crime constituted a Fourth Amendment search. Rather than beginning with a suspect supported by probable cause, investigators searched a large pool of people's location information and worked backward to identify a suspect.

Mark, John, and Margot explain why they see a powerful parallel with CAT. The government collects vast amounts of trading data, runs algorithms against it looking for suspicious transactions, and then identifies the individuals behind those trades. As they put it, the government is using the search itself to develop the probable cause that ordinarily should precede a search.

They also discuss the “third-party doctrine,” whether Americans surrender their privacy rights simply because financial information passes through a broker, and why constitutional protections must keep pace with the government's increasingly powerful surveillance technology.

NCLA has won an important preliminary victory for members of the Silver Spring Jewish Center who want to protect their congregation.

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 Jacob Huebert to discuss the latest development in Silver Spring Jewish Center v. Montgomery County.

Montgomery County banned firearms at places of public assembly, including houses of worship, as well as within 100 yards of those locations. The restrictions prevented the Silver Spring Jewish Center from continuing to use its internal security team of trained, licensed congregants—a security measure the synagogue adopted following the October 7, 2023, terrorist attacks in Israel and the subsequent rise in antisemitism. UL Silver Spring Jewish Center

A federal judge has now issued a preliminary injunction allowing members to carry firearms at the synagogue, finding that NCLA's clients are likely to succeed on their claims under both the Second Amendment and the First Amendment's Free Exercise Clause.

But the fight isn't over.

The court left Montgomery County's 100-yard restriction in place. That presents a particular problem for Orthodox Jewish members who must walk to synagogue on the Sabbath and Jewish holidays. As Jacob explains, one of NCLA's clients cannot make that walk without passing within 100 yards of parks, schools, or other prohibited locations. UL Silver Spring Jewish Center

Mark, John, and Jacob discuss the court's ruling, why NCLA is asking the judge to reconsider the 100-yard restriction, and the unusual collision of Second Amendment and religious-liberty rights at the heart of the case.

The Supreme Court has allowed construction of the new White House ballroom to continue—but the Court's 5–4 decision turned largely on a threshold question: Who actually has standing to challenge it?

On this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by NCLA Staff Attorney Andreia Trifoi to break down National Park Service v. National Trust for Historic Preservation in the United States.

The National Trust sued over the demolition and replacement of the White House East Wing. A lower court blocked above-ground construction, but the Supreme Court has now stayed that injunction, concluding that the Trust is likely to lack Article III standing. Its theory rested on a member who argued that the new ballroom would injure her aesthetic, cultural, and historical interests when she viewed the White House.

John and Andreia discuss why the Court rejected that theory, how the decision fits with decades of environmental standing cases, and the unusual 5–4 split—with Chief Justice Roberts joining Justices Sotomayor, Kagan, and Jackson in dissent.

They also tackle the question lurking beneath the standing fight: If Congress—not a preservation group—has the strongest claim to challenge the project, why hasn't Congress acted?

Can the SEC force someone to give up money when it cannot identify a single harmed investor?

NCLA is asking the Supreme Court to take Spartan Securities Group v. SEC, a case that has been winding through the courts for years and now presents two significant questions about the reach of federal securities law.

NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Senior Litigation Counsel Kara McKenna Rollins, who has worked on the case since 2019.

After a 14-count SEC complaint, NCLA’s clients were found not liable on 13 counts. The remaining dispute has now reached the Supreme Court, where NCLA is challenging both the scope of securities-fraud liability and the SEC’s use of disgorgement.

First, NCLA argues that statements made privately to FINRA and the Depository Trust Company cannot be treated as statements made “in connection with” the purchase or sale of securities when there is no evidence any investor ever saw or heard them. Second, NCLA argues that traditional equitable principles do not allow the SEC to obtain disgorgement when there are no harmed investors and the money instead goes to the U.S. Treasury.

Mark, John, and Kara explain why the case could give the Supreme Court an opportunity to clarify important limits on SEC enforcement—and resolve a question that has been developing in the lower courts for nearly a decade.

For roughly 60 years, the Department of Labor’s Office of Federal Contract Compliance Programs enforced a sweeping regulatory regime governing federal contractors—one rooted largely in presidential executive orders rather than laws passed by Congress.

Now, the Department of Labor has acknowledged that much of that regime lacked statutory authority.

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 Kara Rollins to discuss a major change at OFCCP and NCLA’s role in bringing it about.

Kara explains how OFCCP’s regulatory system developed from Executive Order 11246 and expanded over decades, imposing requirements on companies that do business with the federal government. NCLA has argued that executive orders cannot substitute for congressional authorization when the government imposes binding legal obligations.

After Executive Order 11246 was revoked, the Department of Labor reconsidered its implementing regulations. NCLA submitted comments urging the Department not merely to rescind the regulations, but to acknowledge that much of the regime lacked statutory authority in the first place. The Department’s final action embraces that central argument while preserving OFCCP’s enforcement of requirements that do have statutory foundations, including protections concerning veterans and individuals with disabilities.

Mark, John, and Kara discuss what this means for federal contractors, why Congress—not the executive branch—must make the law, and how participating in the public-comment process can actually influence federal policy.

As Mark puts it, this 60-year regulatory regime is “Exhibit A” for Unwritten Law.

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by NCLA General Counsel Zhonette Brown to discuss Franey v. Washington Department of Fish and Wildlife, NCLA’s challenge to Washington State’s warrantless surveillance of commercial crabbers.

Washington requires commercial crabbers to install government-mandated tracking equipment on their boats. Once crab pots are placed in the water, the government tracks the vessel continuously—every minute—even when the crabbers are back at port or using their boats for activities completely unrelated to fishing. The resulting location information is stored in a government database.

John and Zhonette explain why NCLA argues this surveillance violates the Fourth Amendment and Washington State Constitution’s protections against unreasonable searches. They also discuss NCLA’s takings claims, the state’s requirement that crabbers place tracking equipment on their private property, and why the Washington Department of Fish and Wildlife lacks statutory authority to impose the mandate.

The episode also examines the broader implications of cheap, persistent electronic surveillance. As technology makes it easier for government to track people continuously and store that information indefinitely, John and Zhonette discuss why constitutional protections for privacy become more—not less—important.

NCLA has moved for summary judgment and is seeking to stop Washington from enforcing the tracking requirement against its clients.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione discuss the D.C. Circuit’s recent decision in Heroes Technology v. Consumer Product Safety Commission.

NCLA challenged a CPSC safety rule affecting infant support cushions. Congress created a streamlined rulemaking process for a limited category of “durable infant or toddler products,” including products such as cribs, playpens, and high chairs. But CPSC used that shortcut to regulate infant support cushions—and potentially thousands of other products that NCLA argues fall well outside the category Congress had in mind.

Mark, who served as a CPSC commissioner shortly after Congress created this expedited process, explains why he believes the agency has stretched the law far beyond its original purpose. He and John discuss the D.C. Circuit’s decision upholding the rule, what counts as a “durable” infant product, and why allowing regulators to bypass the normal rulemaking process can have consequences not only for the rule of law, but for consumer safety itself.

The conversation also explores regulatory creep, statutory interpretation, and an important lesson for Congress: when lawmakers leave statutory lists open-ended, agencies may find ways to expand exceptions far beyond their intended scope.

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 Jacob Huebert to discuss NCLA’s amicus brief in Rogoff v. Trump, a case raising an unusual separation-of-powers question: Should federal judges be allowed to appoint the U.S. attorneys who prosecute cases in their own courts?

Federal law allows a district court to appoint a U.S. attorney when a temporary appointment expires without Senate confirmation. That practice dates back to the Civil War era. But NCLA argues that it conflicts with the Constitution’s separation of powers and the Appointments Clause. U.S. attorneys exercise substantial executive authority, deciding whom to prosecute, what charges to bring, and which enforcement priorities to pursue. NCLA argues that officials wielding that kind of power should not be selected by judges.

Jacob explains why NCLA argues U.S. attorneys are principal officers who must be nominated by the President and confirmed by the Senate—and why cross-branch appointments would remain constitutionally problematic even if they are considered inferior officers. The discussion also explores judicial independence, the appearance of impartiality when a judge appoints the prosecutor appearing before that court, and the practical consequences of a system increasingly reliant on temporary and court-appointed U.S. attorneys.

Mark, John, and Jacob also debate the other issue in Rogoff: whether President Trump had the authority to remove the court-appointed U.S. attorney. And they consider whether the court will ever reach the larger—and more interesting—constitutional appointment question.

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by Litigation Counsel Casey Norman to discuss NCLA’s appeal in BASE Access v. National Park Service, now before the U.S. Court of Appeals for the Fifth Circuit.

For decades, the National Park Service has treated BASE jumping as a federal crime in national parks. But Congress never passed a law specifically criminalizing BASE jumping. Instead, the Park Service relies on a 1965 regulation prohibiting the “delivery” of people or objects by parachute or other airborne means—a rule adopted roughly 13 years before BASE jumping emerged in the United States.

Casey explains NCLA’s argument that Congress unconstitutionally transferred criminal lawmaking power to the executive branch and why the Park Service’s decades-old regulation does not actually apply to people who enter a park normally, climb to a jumping point, and parachute to another location within the park.

But before those arguments can even be decided, NCLA must overcome the district court’s ruling that the BASE jumpers lack standing. The court concluded that a pre-enforcement challenge requires an interest in exercising a specific constitutional right—even though several plaintiffs have previously been prosecuted for BASE jumping and want to do it again. Casey explains why NCLA says that standard would effectively force Americans to break the law, risk prosecution, and potentially go to prison before they can challenge an unconstitutional criminal prohibition.

John and Casey also discuss NCLA’s Fifth Amendment vagueness and Administrative Procedure Act claims, the Park Service’s refusal to conduct the planning process it says is necessary to permit BASE jumping, and why NCLA is asking the Fifth Circuit to revive the case.

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by NCLA General Counsel Zhonette Brown to discuss Jacobsen v. Spellerberg, NCLA's newly filed lawsuit advancing a groundbreaking First Amendment argument: education is speech, and parents have a constitutional right to choose the educational speech provided to their children.

Nebraska requires parents to educate their children while directing substantial public funding exclusively toward the state's public-school system. Parents who choose homeschooling or private education because they disagree with the messages conveyed in public schools must bear those costs themselves while continuing to support the public system. NCLA argues that this amounts to viewpoint discrimination and imposes an unconstitutional condition on parents who exercise their First Amendment rights.

Zhonette explains the legal theory developed by NCLA founder Philip Hamburger, the families challenging Nebraska's system, and the century-old Supreme Court precedents recognizing parents' authority to direct their children's education. She and John also discuss what NCLA is asking the court to do and how a victory could expand educational choice in Nebraska.

Show Notes

Public Schools Shouldn’t Be Fiefdoms of Government Speech — Philip Hamburger, National Review

New NCLA Lawsuit: Nebraska’s Educational Scheme Violates Parents’ Free Speech

Education Is Speech: Parental Free Speech in Education — Philip Hamburger, Texas Law Review

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione take on a provocative argument from The New Republic: Is the Supreme Court weakening Congress and creating a more powerful presidency?

Mark and John give author Matt Ford credit for a thoughtful and well-researched article—but think he draws the wrong conclusion from much of the evidence.

They examine major Supreme Court decisions including Loper Bright/Relentless, SEC v. Jarkesy, Cargill v. Garland, Seila Law, and Trump v. Slaughter and argue that the Court's recent jurisprudence is better understood as an effort to restore the constitutional separation of powers.

The president should control the executive branch. Congress should make the laws. Courts should exercise judicial power. And when Congress gives the executive branch too much discretion, the solution isn't to blame the courts for presidential power—it's for Congress to reclaim its constitutional responsibilities.

Mark and John also discuss presidential removal power, administrative adjudication, jury trials, emergency powers, presidential immunity, and why Congress may need to revisit decades-old statutes that hand enormous discretion to the executive branch.

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 Department of Labor v. Sun Valley Orchards, an important case headed to the Supreme Court.

Sun Valley Orchards is a family farm that employs domestic workers as well as foreign workers through the H-2A visa program. After the Department of Labor accused the farm of violating requirements governing its workers, the agency pursued the case through its own administrative adjudication process and ultimately imposed roughly half a million dollars in penalties.

But should an executive agency be able to adjudicate a case involving private rights and impose substantial monetary penalties—or does the Constitution require that kind of dispute to be heard by an independent Article III court?

Russ discusses NCLA's amicus brief, filed with the Buckeye Institute and Americans for Prosperity Foundation, arguing that judicial power belongs exclusively to the judicial branch. The conversation also explores the distinction between so-called "public" and "private" rights, the Supreme Court's decision in SEC v. Jarkesy, and why the Court may finally need to confront its longstanding Atlas Roofing precedent.

With Sun Valley Orchards set to be argued before the Supreme Court, the case could provide important answers about the constitutional limits of administrative adjudication.