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PODCAST

Unwritten Law

New Civil Liberties Alliance

Unwritten Law is a podcast hosted by Mark Chenoweth and John Vecchione, brought to you by the New Civil Liberties Alliance (NCLA). This show dives deep into the world of unlawful administrative power, exposing how bureaucrats operate outside the bounds of written law through informal guidance, regulatory “dark matter,” and unconstitutional agency overreach.

government politics

All Episodes

13:24

Rule 28(j) or Political Theater? DOJ’s Tariff Letter...

Unwritten Law ·

2025/08/26

In this episode ofUnwritten Law, hostsMark ChenowethandJohn Vecchionedissect DOJ’s unusualRule 28(j)filing in the Federal Circuit tariff appeal,V.O.S. Selections, Inc. v. Trump. They explain what 28(j) is actually for (post-argumentnew legal authority), why citing news reports and seeking a broadstaymisses the mark, and how usingIEEPAas a tariff statute raises seriousconstitutional concerns. The discussion walks through stay standards (likelihood of success,irreparable harm, public interest), the

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22:07

NY State Supreme Court Scraps Illegal Fine Against Trump

Unwritten Law ·

2025/08/22

In this episode ofUnwritten Law, hostsMark ChenowethandJohn Vecchionesit down withNCLA's Greg Dolinto unpack the New York Appellate Division’s 323-page ruling in the civil fraud case against Donald Trump. They break down why calling a half-billion-dollar penalty “disgorgement” doesn’t fly withoutill-gotten gains, how theEighth Amendment’s Excessive Fines Clausecomes into play, and why the Attorney General’s theory stretches New York fraud beyond traditionalrelianceandharm. The discussion also covers

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19:26

Stewart v. Walz: When a Professor’s Speech Becomes...

Unwritten Law ·

2025/08/14

In this episode ofUnwritten Law, hosts Mark Chenoweth and John Vecchione sit down with NCLA Litigation Counsel Jenin Younes to unpack her recent oral argument inStewart v. Walz.The case challenges a Minnesota college’s decision to fire a professor who refused to comply with COVID-19 mandates—and openly explained his objections to students.The conversation explores how pandemic-era policies collided with the First Amendment, why the district court dismissed the case, and what the outcome could mean

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14:15

Nondelegation on Ice: EPA’s Refrigerant Rule and the...

Unwritten Law ·

2025/08/12

In this episode ofUnwritten Law, NCLA’s General Counsel Zhonette Brown joins Mark Chenoweth and John Vecchione to unpack the DC Circuit’s ruling inChoice Refrigerants v. EPA.Congress gave EPA free rein to design a cap-and-trade scheme for hydrofluorocarbons—without clear limits. The court sidestepped the constitutional nondelegation problem by reinterpreting the statute to match past laws, even though EPA didn’t follow that approach.We explore why this “constitutional avoidance” tactic raises

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11:28

CAT’s Out of Cash: SEC’s Surveillance Scheme Suffers...

Unwritten Law ·

2025/08/07

In this episode ofUnwritten Law, Mark Chenoweth and John Vecchione unpack a major federal court ruling that struck down the SEC’s funding mechanism for its mass surveillance program—known as the Consolidated Audit Trail (CAT).The 11th Circuit agreed with the American Securities Association and Citadel that the SEC's attempt to impose multi-billion-dollar fees on broker-dealers was arbitrary, capricious, and totally untethered from Congressional authorization.Mark and John break down how this massive

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20:00

Tariffs on Trial—Inside the Federal Circuit’s...

Unwritten Law ·

2025/08/05

In this episode ofUnwritten Law, Mark Chenoweth and John Vecchione break down the high-stakes en banc oral argument inVoss v. United States, a pivotal challenge to presidential tariff authority under the International Emergency Economic Powers Act (IEEPA). John attended the packed Federal Circuit courtroom and brings listeners an insider account of the arguments, judicial skepticism, and the government’s struggle to defend sweeping tariff powers.The discussion dives into the legacy of

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11:37

Who’s Holding the Autopen? Pardons, Accountability,...

Unwritten Law ·

2025/07/31

In this episode ofUnwritten Law, Mark Chenoweth and John Vecchione dissect an overlooked constitutional controversy: presidential pardons signed by an autopen. Inspired by a recent op-ed from NCLA’s founder Philip Hamburger, they question what happens when bureaucrats—or interns—wield the power of the pen. Can the president legally delegate the pardon power? Did anyone actually authorize the latest batch of pardons? And what does the Constitution say about it?Mark and John explore how the Biden

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25:33

Trump v. Boyle: Executive Power, Agency Chaos, and...

Unwritten Law ·

2025/07/29

In this episode ofUnwritten Law, Mark and John dive into the Supreme Court’s emergency order inTrump v. Boyle, a little-noticed but potentially seismic moment in administrative law.What happens when the President fires commissioners from an “independent” agency—and lower courts try to put them back in power? The hosts unpack the chaos at the Consumer Product Safety Commission, the unresolved fate ofHumphrey’s Executor, and the broader implications for executive authority, judicial remedies, and

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22:33

Jury Trials vs. Administrative Power—Did the Third...

Unwritten Law ·

2025/07/24

In this episode ofUnwritten Law, NCLA’s Mark Chenoweth and John Vecchione break down the recent Third Circuit decision inAxalta Coating Systems v. Federal Aviation Administration.The case tests how lower courts apply the Supreme Court’s landmarkJarkesyruling, which emphasized the importance of jury trials and Article III courts for administrative adjudications. Mark and John explore why the panel sided with agency adjudication despite the Supreme Court’s warnings, discuss Judge Bibas’s powerful

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16:27

Criminalizing Insider Trading—Did Courts Just Give...

Unwritten Law ·

2025/07/22

In this episode ofUnwritten Law, NCLA’s Mark Chenoweth, John Vecchione, and Kara Rollins analyze the troubling decision inU.S. v. Sacanell, an insider-trading case that tests the Supreme Court’s landmark decision overturning Chevron deference.They explore how the SEC created expansive insider-trading rules without explicit congressional authorization—rules that are now putting defendants at risk of criminal penalties. The team examines the district court’s reliance on prior Chevron-era precedent,

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23:22

Relentless Post-Chevron—Is the Administrative State...

Unwritten Law ·

2025/07/17

In this episode ofUnwritten Law, NCLA’s Mark Chenoweth, John Vecchione, and Kara Rollins are joined by Professor Eric Bolinder (Liberty University), former counsel in the landmarkLoper Brightcase.They analyze the disappointing outcome in the closely watchedRelentlesscase, where fishermen still face mandatory fees for onboard government observers—even after Chevron deference was overturned.Professor Bolinder explains why the court’s decision ignored critical textual arguments, conflated statutory

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15:32

Kennedy v. Braidwood—Did the Supreme Court Just...

Unwritten Law ·

2025/07/15

In this episode ofUnwritten Law, guest host Andy Morris, NCLA Senior Litigation Counsel, is joined by constitutional law expert Josh Blackman to unpack the Supreme Court’s recent ruling in Kennedy v. Braidwood Management. The case challenged the appointments process of the HHS’s U.S. Preventive Services Task Force—a panel deciding which preventive healthcare services insurers must provide without cost. Josh explains why the ruling, which upheld these appointments, raises critical concerns about

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15:51

FCC vs. Consumers' Research—Did the Supreme Court...

Unwritten Law ·

2025/07/10

In this episode ofUnwritten Law, NCLA's John Vecchione and Zhonette Brown break down the recent Supreme Court decision inFCC v. Consumers' Research, a crucial non-delegation doctrine case.Zhonette explains the controversial ruling that allows the Federal Communications Commission (FCC) to set fees—arguably taxes—without explicit congressional limits. They discuss the implications of the Court’s continued adherence to the "intelligible principle" test, the unresolved confusion between fees and taxes,

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19:35

Chaos at CPSC—Trump, Humphrey’s Executor, and the...

Unwritten Law ·

2025/07/08

In this compelling episode ofUnwritten Law, NCLA’s John Vecchione is joined by litigation counsel Kara Rollins to discuss the unprecedented turmoil at the Consumer Product Safety Commission (CPSC). Following President Trump’s firing of three Democratic commissioners, a dramatic court battle erupted, spotlighting the controversial Humphrey’s Executor precedent and sparking an existential debate about the independence and accountability of federal agencies. Kara and John delve into the explosive

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14:23

FBI Wrong-House Raid—Supreme Court Checks Federal...

Unwritten Law ·

2025/07/01

In this episode ofUnwritten Law, NCLA’s Mark Chenoweth and John Vecchione are joined by litigation counsel Casey Norman to discuss the Supreme Court ruling inMartin v. United States. The case arose from a terrifying FBI wrong-house raid that left an innocent family traumatized and with few options for redress. Casey explains how the Court clarified the scope of the Federal Tort Claims Act (FTCA), rejecting the Eleventh Circuit’s expansive interpretation of federal immunity. They discuss how this

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20:04

One Year After Chevron—How Loper Bright & Relentless...

Unwritten Law ·

2025/06/28

In this special anniversary episode ofUnwritten Law, NCLA’s Mark Chenoweth and John Vecchione discuss the landmark Supreme Court ruling inLoper Bright & Relentless v. Department of Commerce, marking one year since Chevron deference was overturned. They examine how this pivotal decision reshaped judicial review, empowered textualism, and curbed administrative excess across multiple cases, from net neutrality to FDA overreach. John highlights the ongoing impacts of the ruling, including Congress’s

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12:30

Coinbase, IRS, and Your Privacy—Will the Supreme...

Unwritten Law ·

2025/06/26

In this episode ofUnwritten Law, NCLA’s Mark Chenoweth and John Vecchione discuss the latest developments inHarper v. IRS, a privacy case currently pending at the U.S. Supreme Court. At stake is the controversial “third-party doctrine,” a 1970s-era legal theory allowing agencies like the IRS to access your private financial data without a warrant, simply because it’s held by third parties—like Coinbase. John breaks down the troubling implications, explains why the doctrine no longer fits the digital

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17:13

Fax Machines, 60-Day Rules, and Why Administrative...

Unwritten Law ·

2025/06/24

In this episode ofUnwritten Law, NCLA’s Mark Chenoweth sits down with Senior Litigation Counsel Peggy Little to unpack the Supreme Court’s decision inMcLaughlin Chiropractic Associates v. McKesson Corporation. Though the case began as a dispute over unwanted fax messages, the Court’s ruling has major implications for administrative law—particularly by striking down the restrictive "60-day rule" that previously blocked challenges to agency rules after an arbitrary, short deadline. Peggy explains why

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19:48

Silencing Scholarship—How Institutional Review Boards...

Unwritten Law ·

2025/06/19

In this episode ofUnwritten Law, NCLA’s Mark Chenoweth and John Vecchione are joined by NCLA’s Margot Cleveland to discuss a groundbreaking lawsuit against the University of Tennessee’s Institutional Review Board (IRB).The case centers on Idil Issak, a cultural anthropology PhD student barred from conducting dissertation research on domestic worker abuse in the UAE—research purely involving interviews and speech.Margot explains how IRBs, created to prevent unethical medical experiments, have morphed

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15:42

When Courts Say No—Alpine Securities, FINRA, and the...

Unwritten Law ·

2025/06/17

In this episode ofUnwritten Law, NCLA’s Mark Chenoweth and John Vecchione are joined by NCLA Senior Litigation Counsel Russ Ryan to discuss the Supreme Court’s surprising refusal to reviewAlpine Securities v. FINRA, a critical case challenging FINRA’s extensive, privately delegated enforcement powers. Russ breaks down why the decision matters, how FINRA’s unusual enforcement process undermines due process, and why the Supreme Court’s denial of certiorari leaves unresolved crucial constitutional

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62 results

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