New Civil Liberties Alliance

The Rhode Island Department of Health (RIDOH) shut down Dr. Stephen Skoly’s practice because he refused to comply with the state’s Covid-19 vaccine mandate for health care workers and spoke out against the mandate. Dr. Skoly has a history of Bell’s Palsy facial paralysis and risked a paralysis recurrence if vaccinated. In addition, Dr. Skoly has naturally acquired immunity to Covid, having recovered from a prior Covid-19 infection. Nonetheless, in October 2021, RIDOH shuttered Dr. Skoly’s 11-person medical facility, preventing him from providing care to hundreds of private patients, as well as to the state’s most vulnerable public patients—the residents of the state’s psychiatric hospital and prison where Dr. Skoly was employed as the only dental surgeon. On Dr. Skoly’s behalf, NCLA filed a lawsuit against Governor Daniel McKee and Dr. James McDonald, RIDOH’s Interim Director, to force Rhode Island to permit Dr. Skoly to resume practice. In March 2022, after over five months of suspension, and three days before a court hearing where medical experts were to testify to the irrationality of Rhode Island’s conduct, Rhode Island finally relented. It agreed to treat the N95 masked Dr. Skoly the same as other unvaccinated N95 masked workers. Dr. Skoly was permitted to re-assemble his ten-person dental team and return to practice. However, Dr. Skoly’s case is not over. His lawsuit seeks declaratory relief that Rhode Island violated Dr. Skoly’s constitutional rights, a permanent injunction to prevent Rhode Island from violating his rights again, and damages in part for denying him unemployment insurance during the period of time when he was prevented from practicing.

SCOTUS Upholds Government’s Power to Deny Puerto Ricans Federal Benefits The Supreme Court on Thursday rejected a bid to extend a federal program offering benefits to residents of Puerto Rico, finding that Congress had the authority to deny that assistance. Vec discusses administrative programs and American territories in U.S. v. Madero. Professor Philip Hamburger on Purchasing Submission Mark interviews Professor Hamburger on his new book, Purchasing Submission: Conditions, Power, and Freedom.

Vega v. Tekoh and Miranda Rights Terence Tekoh worked as a patient transporter in a hospital in Los Angeles. After a patient accused him of sexual assault, hospital staff reported the allegation to the Los Angeles Sheriff’s Department. Deputy Carlos Vega went to the hospital to question Tekoh and take his statement. Although the parties described vastly different accounts of the nature of the interaction between Tekoh and Vega, it is undisputed that Vega did not advise Tekoh of his Miranda rights prior to questioning him or taking his statement. Vec discusses Miranda and stare decisis in Vega v. Tekoh, a case pending before the Supreme Court. NCLA Files Amicus Brief in Ohio Supreme Court Deference Lawsuit NCLA has filed anamicusbrief in TWISM Enterprises, LLC v. State Board of Registration for Professional Engineers and Surveyors, urging the Supreme Court of Ohio to declare agency deference unconstitutional. NCLA argues that the Hamilton County Court of Appeals erred by deferring to the Ohio Board of Registration for Professional Engineers and Surveyors’ “reasonable interpretation” of what the court characterized as “ambiguous statutes and administrative rules.” Agency deference violates the Ohio and federal constitutions by requiring judges to abandon their duty of independent judgment. Mark discusses NCLA’s amicus brief before the Ohio Supreme Court on state chevron.

Elon Musk’s Twitter Takeover Bid Elon Musk has announced an offer to take Twitter Inc. private in a deal valued at $43 billion deal in a filing with the U.S. Securities and Exchange Commission on Thursday, after turning down the chance to take a board seat at the company. Musk first disclosed a stake of about 9% on April 4, at the time making him the largest individual investor. Mark discusses the implications of Musk’s Twitter takeover bid. Taking Issue With Calls for Justice Thomas’s Recusal Vec takes issue with the calls for Justice Clarence Thomas’s recusal in the wake of recently leaked texts of Ginni Thomas gathered by the House January 6 special committee.

Fifth Circuit Reverses Injunction in Feds for Medical Freedom Lawsuit On Thursday, the Fifth Circuit Court of Appeals reversed a federal district court’s nationwide injunction barring the implementation of Executive Order 14043, which mandates COVID-19 vaccination for all executive branch employees, subject to medical and religious exceptions. Vec explains the Court’s decision in Feds for Medical Freedom v. Biden. NCLA Files Opening Brief in Polyweave v. U.S. Department of Transportation NCLA has filed its opening brief in Polyweave Packaging v. U.S. Dept. of Transportation, in the U.S. Court of Appeals for the Sixth Circuit, contending that the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration exceeded its authority under a statute that allows imposition of a civil penalty in response to “knowingly violating” the Hazardous Material Regulations. Mark covers the new Sixth Circuit petition.

NCLA Executive Director and General Counsel Mark Chenoweth joins Real America's Voice to discuss SEC's recent security breach in SEC v. Cochran and the agency's investigation into Tesla CEO Elon Musk. The U.S. Securities and Exchange Commission (SEC) has disclosed that its enforcement staff accessed documents in at least two adjudicatory matters currently in litigation in federal court, including SEC v. Michelle Cochran. NCLA represents Ms. Cochran in a lawsuit challenging the constitutionality of SEC’s in-house Administrative Law Judges (ALJs), who enjoy multiple layers of protection from removal by President Biden. In December 2021, the en banc U.S. Court of Appeals for the Fifth Circuit ruled in favor of Ms. Cochran, declaring that she has the right to challenge the constitutionality of her ALJ’s removal protections in federal court before undergoing an administrative adjudication.

NCLA Senior Litigation Counsel Peggy Little joins the SEC Roundup Podcast to discuss the SEC’s administrative process and recent Constitutional challenges to SEC enforcement actions. Peggy offers insight into Article III considerations, right of review at the Circuit Courts, and the various challenges faced by her clients. Website: https://nclalegal.org Facebook: https://www.facebook.com/NewCivilLibe... Twitter: https://twitter.com/NCLAlegal LinkedIn: https://www.linkedin.com/company/ncla... Instagram: https://www.instagram.com/nclalegal/

The Court-Packing Blitz In this episode, Vec reacts to recent news that Democrat lawmakers are preparing to unveil legislation that would add four seats to the U.S. Supreme Court, a move that could harm the rule of law in the U.S. This comes on the heels of an executive order, signed by President Biden last week, that establishes a 36-member commission to report back within six months on possible changes to the Supreme Court’s membership, jurisdiction, and lifetime terms. The legislation will have slim hopes of passage, with Republicans united in opposition to any effort that would upset the balance of the court, and even many Democrats reluctant to prejudge the issue while President Biden’s commission is at work. The work of the commission and the pressure campaign from judicial activists could, however, be intended as a shot across the bow to influence the deliberations of the Supreme Court. The proposals to apply term limits or adding justices to the Supreme Court would require a constitutional amendment. The judiciary should remain independent. Supreme Court justices are appointed by the president rather than elected by the people, and once confirmed by the Senate, they owe no allegiance to any person or party. Their only allegiance is to the Constitution. The president can’t replace them at will like a political appointee; justices can only be replaced when they retire, die, or are impeached and removed from office for cause. Justice Thomas on Big Tech and the First Amendment Later in the episode, Mark dissects Justice Thomas’s latest concurring opinion in Biden v. Knight First Amendment Institute at Columbia University, a lawsuit in which a lawyer alleged President Trump violated the Constitution in blocking this individual from @realdonaldjtrump on Twitter. The case was dismissed as moot by the U.S. Supreme Court on April 5th. Justice Thomas points out that “public forum” law does not fit well with online platforms. He then outlines two other doctrines that have a long legal history of application to private businesses: “common-carrier law” and “public accommodation law.” Justice Thomas, concurring: “The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him. But if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions. This petition, unfortunately, affords us no opportunity to confront them.”

Government agencies are not above the law. A documentary video released by NCLA featuring the case, R-CALF v. U.S. Department of Agriculture, et al, shows how the U.S. Department of Agriculture (USDA) and its subagency Animal and Plant Health Inspection Service (APHIS) seem to think they are. These agencies violated the Federal Advisory Committee Act (FACA) and the Administrative Procedure Act (APA) in their attempt to unlawfully require America’s ranchers to implement “radio frequency identification” (RFID) eartags through a two-page “Factsheet” posted on their website without any prior warning. Not only did defendants violate FACA and the APA, they violated their own regulations as set forth in the 2013 Final Rule on animal identification and traceability. The 2013 Final Rule was designed to protect producers’ right to use low-cost technologies related to animal identification and traceability that have been used for generations and are both flexible and adaptable. Defendants’ unlawful RFID mandate is just the latest effort to try to prevent cattle producers from using those tried-and-true animal identification methods that up to now had been perfectly acceptable, including tattoos, backtags, permanent metal eartags, brands, and group/lot identification numbers. Defendants responded to NCLA’s lawsuit by immediately withdrawing their RFID mandate, thereby conceding that it was not only improvidently issued, but that it could not be defended in court. They now find themselves having to admit that they also failed to follow FACA’s procedural requirements when they developed their RFID mandate—mostly because they wrongly assumed that they should not have to. While USDA and APHIS have withdrawn their “Factsheet” and their mandatory RFID requirement along with it, the fact remains that they violated numerous laws and regulations when they attempted to force compliance with a mere “guidance” document in the first place and should be held accountable for their illegal actions. NCLA is a nonpartisan, nonprofit civil rights group, representing the trade association Ranchers Cattlemen Action Legal Fund United Stockgrowers of America (R-CALF USA), and four ranchers: Tracy and Donna Hunt from Wyoming, and Kenny and Roxy Fox from South Dakota.

Former Trump Appointee Sues Biden Administration Mark discusses the complaint just filed in Severino v. Biden over the firing of Trump appointees to the Administrative Conference. Former U.S. Department of Health and Human Services official Roger Severino sued President Joe Biden in D.C. federal court late Wednesday over the Biden administration's efforts to fire him from the Council of the Administrative Conference of the United States following former President Donald Trump's eleventh-hour appointment. Axon Faces 9th Circ. Loss Later in the episode, John discusses January’s Ninth Circuit decision in Axon v. FTC Axon began its lawsuit in the U.S. Federal District Court of Arizona by challenging the constitutionality of the FTC’s adjudicative process in which NCLA filed an amicus curiae brief in support of Axon Enterprise Inc. NCLA’s brief solely addresses the “Tentative Ruling” issued by the Court, which concluded that federal courts do not have jurisdiction to evaluate a facial challenge brought under the U.S. Constitution. The district court sided with the FTC, so Axon appealed to the Ninth Circuit Court of Appeals. On January 28, 2021, the court came to a split 2-1 panel decision to affirm the dismissal, requiring Axon to fight the FTC on its home court—the administrative procedures prescribed by statute, irrespective of its prospective constitutional claims. Read more: https://nclalegal.org/2021/02/axon-suffers-a-defeat-in-the-9th-circuit-but-both-majority-and-dissent-see-the-problem/

SCOTUS to Review Railroad Benefits Case John discusses the significance this week’s SCOTUS decision in the railroad pension case, Salinas v. U.S. Railroad Retirement Board has or administrative law. The Supreme Court of the United States issued an opinion in Salinas v. U.S. Railroad Retirement Board on Feb. 3rd. The case called into question whether the decision of the United States Railroad Retirement Board to administer statutes that deny benefits to a claimant, and then later refuse to reopen its denial, is subject to judicial review? The High Court decided yes, the Board’s refusal to reopen a prior benefits determination is subject to judicial review. NCLA Scores Win Against Nonbinding Guidance Later in the episode, Mark discusses NCLA’s recent victory at the WY Supreme Court in ASCI v. Laramie Co. Planning Commission On February 1st, the Wyoming Supreme Court ruled to reverse and set aside the decision of the Laramie County Planning Commission (the Commission) in the case of Asphalt Specialties Co., Inc. v. Laramie County Planning Commission. This victory reinforces a major administrative law point that NCLA is pressing, regulators cannot restrict people’s conduct based on nonbinding guidance documents. “Counties may only restrict a land use pursuant to zoning,” declared the Court in its opinion. “ASCI’s Lone Tree Creek property is not zoned. The Commission therefore exceeded its statutory authority when it utilized its comprehensive land-use plan and the site plan review process to outright deny ASCI use of its land for a limited gravel mining operation.” The Court also ruled that the Commission’s decision to use a vision planning guidance document to stop ASCI’s gravel quarry development was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” Read more about the case here: https://nclalegal.org/2021/02/in-ncla-victory-wy-supreme-court-reverses-local-planning-comm-attempt-to-enforce-guidance/

Oral Arguments in Bump Stock Ban Case This week NCLA Litigation Counsel, Caleb Kruckenberg, presented oral arguments in Aposhian v. Barr before the full 10th Circuit Court of Appeals. In this episode, Mark breaks down the argument that ATF's rule banning bump stocks exceeds the agency's legal authority. NCLA represents Mr. Aposhian in challenging this unconstitutional rewriting of a federal statute. The case is not about whether bump stocks should be banned. Instead, it is about whether ATF acted lawfully in how it banned them. NCLA contends that agencies may not rewrite any statutes, let alone federal criminal statutes. Firearms instructor Clark Aposhian lawfully purchased a bump stock, but on March 26, 2019, the Bureau of Alcohol, Tobacco, Firearms, and Explosives adopted a regulation changing the statutory definition of “machine gun” to include bump stocks. By rewriting the statute, ATF turned Mr. Aposhian and more than 500-thousand other law-abiding Americans into felons, subject to a 10-year prison sentence if they did not destroy or divest themselves of possession, even though owning a bump stock was lawful under the federal statute at the time of purchase. Listen to oral arguments here: https://www.youtube.com/watch?t=400&v...​ Judges Waiting to Retire Later in the episode, Vec leads a discussion about the pros/cons of judges waiting to retire until a president from their own party is elected. Judges and justices serve no fixed term — they serve until their death, retirement, or conviction by the Senate. By design, this insulates them from the temporary passions of the public and allows them to apply the law with only justice in mind, and not electoral or political concerns. Listen to hear how politics still has a role in the judicial branch, despite its apolitical structure.

Guest Interview: Susan Dudley, GW Regulatory Studies Center Mark interviews the Director of the George Washington University Regulatory Studies Center, Susan Dudley. Together they discuss the process of regulating and the various ways in which the new Biden administration could undo Trump administration regulations, as well as reverse the course of deregulatory efforts over the last four years. Susan writes often about the state of administrative regulation. Read her work here:https://regulatorystudies.columbian.gwu.edu/susan-e-dudley Gamestop's Stock Market Adventure Later in this episode, Vec and Mark discuss the investment frenzy surrounding the video-game retailer, Gamestop. It is the latest twist in a battle that has pitted amateur investors against Wall Street giants. Major hedge funds had bet billions of dollars that GameStop's shares would fall. But they have faced major losses after amateurs, swapping tips on social media sites such as Reddit, drove up the share price by more than 700% in a week. Source: https://www.bbc.com/news/business-55837519

Presidents sign Executive Orders all the time to state mandatory requirements for the Executive Branch. But most people don't understand how they work and why incoming presidents usually end up overturning most of what their predecessors put in place through these EOs. Mark and Vec provide a civics lesson on the power of executive orders. Later in the episode, we discuss Biden's call on the Justice Department to consider reinstating an Obama-era practice that allowed prosecutors to reach settlements in which defendants paid compensation to third-party groups instead of directly to victims, Fox News reported on Wednesday. Biden’s request to revive this practice is part of an executive order, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” that the president plans to sign. The practice was initially halted by former Trump attorney general Jeff Sessions in 2017.

In this episode, Mark interviews NCLA Litigation Counsel, Caleb Kruckenberg about our lawsuit against the IRS for acquiring the unbridled power to demand and seize Americans’ private financial information from third parties without any judicial process in defiance of the Fourth and Fifth Amendments and statutory protections. NCLA represents Mr. James Harper in his case against the agency before the United States District Court for the District of New Hampshire. Mr. Harper’s “crime”? Holding a bitcoin wallet. The IRS somehow obtained Mr. Harper’s records without a valid subpoena, court order, or judicial warrant based on probable cause. The Fourth Amendment to the U.S. Constitution protects “the right of the people to be secure in their … papers … against unreasonable searches and seizures.” In this case, the IRS violated the Fourth Amendment by issuing an informal demand for Mr. Harper’s financial records from a third party even though it lacked any particularized suspicion that he had violated any law. Read more about this case here: https://nclalegal.org/james-harper-v-...​ Later in the show, Mark and Vec discuss our amicus brief in United States v. Arthrex. NCLA is asking the U.S. Supreme Court to let Congress fix the Appointments Clause defect in administrative patent judges. At issue in the consolidated set of cases is whether administrative patent judges (APJs) can be appointed by the U.S. Secretary of Commerce or whether the Constitution requires the President to appoint these judges and the Senate to confirm them. Read more about this case here: https://nclalegal.org/2020/12/ncla-asks-us-supreme-ct-to-let-congress-fix-appointments-clause-defect-in-admin-patent-judges/

"Buyer Beware" takes on a whole new meaning if you wish to see the U.S. Consumer Product Safety Commission’s (CPSC) safety standards for a product before purchasing it. NCLA represents Lisa Milice in her petition to the U.S. Court of Appeals for the D.C. Circuit to require the Consumer Product Safety Commission (CPSC) to make the safety standards for infant bath seats freely available to the public. The government is supposed to be transparent, but CPSC is keeping consumers in the dark by allowing a third-party organization to hide the law behind a paywall. Mrs. Milice was researching CPSC’s safety standards on its website before purchasing an infant bath seat when she hit a wall—a third-party paywall—demanding she fork over $58 to get a copy of those safety rules. To see the safety standard, she would have to pay ASTM International, a private standard development organization, twice the cost of the infant bath seat she was looking to purchase. CPSC cannot charge for access to the law because the law in its entirety belongs to the citizenry. Secret law also violates the rights secured by the First Amendment, which protects the right to petition the government, and the Due Process Clause, which requires that people have notice of their legal obligations. In hiding the law behind a paywall, CPSC violated the Commission’s own organic statute, the Freedom of Information Act, and the Administrative Procedure Act. These laws require that CPSC make its binding safety standards reasonably available to the public. It’s astounding that Americans have to fight in court for their right to see the government’s binding regulations. NCLA is determined to make any legally binding standard freely accessible to the public. Excerpts from the video: “The way our Republic is set up is the citizens are the government. So, when the government makes a law, they’re making it for the citizens. The government can’t keep the law from the citizens because the citizens are the government.” — Jared McClain, Litigation Counsel, NCLA “It may be easier for the administrative state to outsource the rule writing process to safety organizations and standard-writing organizations, but that doesn’t mean that they can hide the law from the rest of us.” — Mark Chenoweth, Executive Director & General Counsel, NCLA “I want to bring awareness to the general public that this information is held behind a paywall, and by partnering with NCLA—and I hope that by winning this case—we will be able to make those safety standards free to the public. It’s important because it’s the safety of our children at stake.” — Lisa Milice, NCLA client & petitioner in Lisa Milice v. Consumer Product Safety Commission For more information about this case visit: https://nclalegal.org/lisa-milice-v-u-s-consumer-product-safety-commission/ ABOUT NCLA NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org.