New Civil Liberties Alliance

NCLA Litigation Counsel Jenin Younes and GMU Law Professor Todd Zywicki join The Bill Walton Show to discuss Missouri v. Biden and the government's role in social media censorship.

Ninth Circuit Reinstates Trump-Era Clean Water Act Rule A Ninth Circuit panel recently restored a Trump-era rule that limits the power of states and tribes to restrict new development under the Clean Water Act. The rule affected the permitting and relicensing process for thousands of industrial projects, including natural gas pipelines, hydroelectric plants, wastewater treatment facilities and construction sites. Mark discusses the new Ninth Circuit case consistent with the rule of law. DOJ Opposes SCOTUS Review of NMFS’s at-Sea Monitor Rule In Loper Bright Enterprises, et al. v. Raimondo, et al., the U.S. Department of Justice has filed a brief in opposition to Loper Bright Enterprises’ petition for a writ of certiorari before the U.S. Supreme Court. NCLA clients Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC, corporations operating in the herring fishery off the coast of New England, have filed an amicus curiae brief in support of Loper Bright Enterprises’ cert. petition. Vec discusses the government’s brief in Loper Bright.

Elon Musk Challenges SEC Gag Order After a jury cleared Tesla Inc CEO Elon Musk of defrauding shareholders in 2018 tweets boasting that he had secured funding to take Tesla private, Musk is now trying to get rid of his SEC gag order. Mark and Vec discuss Musk’s challenge against unconstitutional prior restraints on his ability to talk and tweet about Tesla. SEC’s Mutual Fund Proxy Voting The U.S. Securities and Exchange Commission in November adopted a new rule that requires certain investment funds to reveal more about how they vote on shareholder ballots, including on pay packages for top executives. Mark describes SEC’s proxy vote regulations for mutual funds.

The Government’s “Disinformation” Blacklist According to a recent investigation in the Washington Examiner, the U.S. State Department since 2018 has given sizeable grants to Global Disinformation Index (GDI), a London-based group which feeds a blacklist to advertisers to keep ads off conservative media outlets. Mark and Vec discuss the government funds from the State Department to eliminate protected First Amendment speech. SEC’s Unconstitutional Climate Disclosure Rules In 2022, the U.S. Securities and Exchange Commission proposed new requirements for public companies regarding their public disclosure of climate-related risks. The proposed rules would require public companies to disclose their overall greenhouse gas emissions, including emissions generated from both (1) the production of any inputs from their suppliers and (2) the use of their products/services. Vec examines the use of securities law to affect climate change.

FTC Commissioner Wilson Announces Resignation Commissioner Christine Wilson has recently announced her plans to soon resign from the Federal Trade Commission due to FTC Chair Lina Khan’s “disregard for the rule of law and due process.” Without Wilson, the FTC will have three remaining members of what is usually a five- member panel. NCLA Litigation Counsel Kara Rollins joins Vec to discuss the resignation of Commissioner Wilson. NCLA Warns Dept. of Education that Proposed Student-Loan Plan Lacks Congressional Appropriation The U.S. Department of Education’s proposed rule “Improving Income-Driven Repayment for the William D. Ford Federal Direct Loan Program” represents the latest effort to achieve through administrative fiat a massive and untargeted cancellation of student-loan debt that elected members of Congress have repeatedly declined to legislate, authorize, or pay for. NCLA has filed a Comment objecting to ED’s planned overhaul of income-driven repayment, on the grounds that the agency not only lacks the statutory authority to promulgate the proposed rule, but its statutory interpretation would also constitute an unconstitutional delegation of legislative power from Congress in violation of the Vesting and Appropriations Clauses of the Constitution. Mark and NCLA Litigation Counsel Sheng Li talk through NCLA’s Comment on ED’s newest unlawful student loan forgiveness program.

NCLA Amicus Brief Challenges CPSC’s Unconstitutional Shielding of Commissioners from Removal NCLA has filed an amicus brief in Window Covering Manufacturers Association v. CPSC, a case before the U.S. Court of Appeals for the D.C. Circuit. The Window Covering Manufacturers Association (WCMA) is challenging a new Consumer Product Safety Commission (CPSC) rule governing the length of cords for custom-made blinds. Petitioners challenge the rule on several grounds, including: a) CPSC’s failure to comply with the Consumer Product Safety Act, and b) the Commission’s unconstitutional structure shielding CPSC commissioners from at-will removal. Vec interviews NCLA Senior Litigation Counsel Greg Dolin on WCMA v. CPSC. IRS Unlawfully Seizes Trove of Cryptocurrency Data NCLA, which represents Plaintiff James Harper in Harper v. Rettig, has filed a response to IRS’s Motion to Dismiss the lawsuit, arguing that IRS violated Mr. Harper’s statutory, Fourth, and Fifth Amendment rights by seizing his documents without probable cause to believe he had under-reported his income or failed to pay tax and by denying him procedural due process to contest the seizure. In November 2016, IRS issued a third-party summons to Coinbase, a large cryptocurrency exchange, demanding that the company turn over the financial records of hundreds of thousands of unnamed customers. This massive trove of documents included not only customer identification information but also records of customer account activity and periodic statements of account. Mark discusses IRS’s violations of due process in Harper v. Rettig.

First Amendment Issues in Lawsuit Against FTC NCLA filed a Motion to Dismiss the Federal Trade Commission’s (FTC) lawsuit against Precision Patient Outcomes, Inc. (PPO), and its CEO, Margrett Lewis. NCLA argues FTC cannot rightfully exercise executive power by initiating and prosecuting this lawsuit, especially considering the Justice Department refused to bring this case. Congress cannot empower FTC Commissioners to file lawsuits while shielding them from at-will removal by the President. Vec discusses the First Amendment issues in FTC v. PPO. NCLA Supports Doctors’ Suits Against California Law Censoring Covid Medical Advice NCLA filed an amicus curiae brief in the U.S. Court of Appeals for the Ninth Circuit in support of plaintiffs challenging Assembly Bill 2098, which empowers the Medical Board of California to discipline physicians who “disseminate” information regarding Covid-19 that departs from the “contemporary scientific consensus.” Last month, NCLA obtained a preliminary injunction on behalf of five doctors in a successful challenge to the same law in Høeg, et al. v. Newsom, et al. The State of California is not appealing that loss. It apparently prefers to defend appeals against the unsuccessful plaintiffs in McDonald v. Lawson (from the Central District of Calif.) and Couris v. Lawson (from a stay in the Southern District of Calif.). NCLA’s amicus brief will ensure that the Ninth Circuit sees the arguments that prevailed before Judge William Shubb in the Eastern District of Calif. in Høeg v. Newsom. Mark and Vec discuss NCLA’s amicus brief against AB 2098.

NCLA Litigation Counsel Jenin Younes joins Wilkow! to discuss a California law signed by Governor Gavin Newsom that punishes physicians for giving medical advice to their patients that opposes the government's viewpoints on Covid-19. The U.S. District Court for the Eastern District of California has recently granted NCLA’s motion for preliminary injunction in Høeg, et al. v. Newsom, et al., a ruling which temporarily halts the implementation of the law.

NCLA Senior Litigation Counsel John Vecchione joins Koren Wong-Ervin, Partner at Axinn, Veltrop & Harkrider LLP, and Ashley Baker, Director of Public Policy at The Committee for Justice, for a panel on antitrust, Congress, and the Federal Trade Commission (FTC), hosted by the Committee for Justice at the Capitol Hill Club on December 15, 2022.

Rhode Island Oral Surgeon Continues Battling Gov’t Retaliation over Opposing Vaccine Mandate The State of Rhode Island unlawfully prevented Dr. Stephen Skoly from practicing critically needed dental care in retaliation for his public opposition to the temporary emergency regulation mandating that “all health care workers and health care providers be vaccinated against COVID- 19.” Statements by and behavior of state officials make clear that administrative actions against Dr. Skoly were taken precisely because he publicly voiced his opposition and would not have been taken but for Dr. Skoly’s speech. NCLA has filed a response to the government’s Motion to Dismiss Skoly v. McKee, et al., in the U.S. District Court for the District of Rhode Island. Mark talks through Dr. Skoly’s opposition to summary judgment in Skoly v. Mckee. Humphrey’s Executor in FTC v. PPO NCLA has filed a Motion to Dismiss the Federal Trade Commission’s (FTC) lawsuit against Precision Patient Outcomes, Inc. (PPO), a California-based company which develops precision medical solutions for burn and wound care, scar management, and skin-renewing technologies, and its CEO, Margrett Lewis. Among other things, NCLA argues the Supreme Court’s blessing the FTC of yesteryear in Humphrey’s Executor does not imply that the Commission newly vested with truly executive powers would be similarly endorsed. When Humphrey’s Executor was decided, the FTC did not possess the power to initiate suits or to seek any penalties. This core executive power was only added to the FTC’s authority in the 1970s. The Supreme Court itself has recognized that its 1935 “conclusion that the FTC did not exercise executive power has not withstood the test of time." Vec discusses Humphrey’s Executor in FTC v. PPO.

Sixth Circuit Vacates Penalty Against NCLA Client The U.S. Court of Appeals for the Sixth Circuit has issued a ruling in Polyweave Packaging v. U.S. Dept. of Transportation to vacate the civil penalty against Polyweave Packaging, Inc. and remand back to the U.S. Department of Transportation, Pipeline and Hazardous Materials Safety Administration (PHMSA). NCLA, which represents Polyweave, petitioned for review a decision of PHMSA’s Chief Safety Officer—a career civil servant who is not politically accountable and thus lacks appropriate authority—after he issued a Final Decision affirming alleged violations against Polyweave and assessing a civil penalty of $14,460. The agency has since conceded that the Chief Safety Office was not properly appointed at the time of the decision in October 2021. NCLA Litigation Counsel Sheng Li joins the show to discuss NCLA’s victory in Polyweave v. Dept. of Transportation. SCOTUS Should Reject Student Loan Cancellation Plan NCLA has filed an amicus curiae brief, supporting two separate Supreme Court cases challenging the Biden Administration’s unlawful student loan debt cancellation plan. Biden, et al. v. Nebraska, et al. and Department of Education, et al. v. Brown, et al. contest the government’s invocation of the HEROES Act to rewrite statutory provisions and cancel hundreds of billions of dollars owed to the Treasury, which violates both the Vesting and Appropriations Clauses. NCLA is challenging the same Loan Cancellation Program on behalf of the Cato Institute in a separate case pending in the United States District Court for the District of Kansas. NCLA offers the Court an alternative basis to find standing. The States involved in this litigation—Nebraska, Missouri, Arkansas, Iowa, Kansas, and South Carolina—would suffer concrete injuries because the government’s unlawful conduct deprives the States of benefits guaranteed by the Public Service Loan Forgiveness (PSLF) program.

Litigation Counsel Jenin Younes joins the Ezra Levant Show to discuss Høeg v. Newsom, NCLA's lawsuit challenging a California law that punishes doctors who don't agree with the government's views on Covid-19. A district judge in California has recently granted NCLA's motion for preliminary injunction in the case, which temporarily halts the implementation of the law.

California Judge Grants Injunction to NCLA Clients, Halts Implementation of Law Censoring Doctors Senior Judge William Shubb of the U.S. District Court for the Eastern District of California has granted NCLA’s motion for preliminary injunction in Høeg, et al. v. Newsom, et al. He held that plaintiffs have standing to bring a legal challenge, and enjoined implementation of Assembly Bill (AB) 2098 in California. The controversial state law empowered the Medical Board of California to discipline physicians who “disseminate” information regarding Covid-19 that departs from the “contemporary scientific consensus.” Judge Shubb stated that “the ‘contemporary scientific consensus’ lacks an established meaning within the medical community,” and thus, because the “scientific consensus” is so ill-defined and vague, the physician plaintiffs in the lawsuit are “unable to determine if their intended conduct contradicts the scientific consensus, and accordingly ‘what is prohibited by the law.’” NCLA Senior Litigation Counsel Greg Dolin joins Mark to discuss NCLA’s recent win in Høeg v. Newsom. 11th Circuit Holds Congress’ State Tax Cut Ban Unconstitutional, in NCLA Win The 11th Circuit has handed down a ruling in West Virginia v. U.S. Department of the Treasury, upholding the district court’s decision to permanently enjoin the Secretary of the Treasury from enforcing a “Tax Cut Ban” against the 13 states that sued her: West Virginia, Alabama, Alaska, Arkansas, Florida, Iowa, Kansas, Montana, New Hampshire, Oklahoma, South Carolina, South Dakota, and Utah. The ruling marks NCLA’s second amicus win on appeal—following Commonwealth of Kentucky and State of Tennessee v. Janet Yellen, et al.—in lawsuits contesting Congress’s attempt to usurp state taxing authority. Vec interviews NCLA Litigation Counsel Sheng Li on the decision.

Challenging PCAOB’s Modern Star Chamber Proceedings NCLA has filed a complaint in the U.S. District Court for the Northern District of Texas seeking declaratory and injunctive relief from the Public Company Accounting Oversight Board’s secret, unaccountable, and inherently biased prosecutorial processes. With no meaningful supervision by any government official appointed or directly removable by the President, and using funds raised by private taxes with no Congressional appropriation or oversight, PCAOB has investigated and brought a secret prosecution seeking to strip NCLA’s client of his livelihood and impose quasi-criminal monetary penalties—without a jury trial, due process of law, an impartial adjudicator, or any constitutional accountability. Mark and NCLA Senior Litigation Counsel Russ Ryan discuss NCLA’s complaint against PCAOB. CFTC Tries to Shut Down PredictIt Market After the Commodities Futures Trading Commission (CFTC) issued an order to the PredictIt political prediction market to close by February 15th, 2023, a group challenged the agency in federal court, arguing that the shutdown order violates the Administrative Procedure Act. The Fifth Circuit Court of Appeals has now granted an injunction allowing the PredictIt market to continue operating while the court considers granting longer term relief. Vec and Russ talk through the PredictIt market and CFTC’s actions.

NCLA Litigation Counsel Jenin Younes joins Newsmax to discuss the U.S. District Court for the Eastern District of California's recent ruling, which temporarily blocks a law that censors doctors on Covid-19 "misinformation." NCLA is challenging Assembly Bill 2098 in the case of Høeg, et al. v. Newsom, et al.

NCLA Calls on 11th Cir. to Vacate District Court’s Judgment in Case SEC Never Should Have Brought NCLA has filed an opening brief on behalf of its clients in U.S. Securities and Exchange Commission v. Spartan Securities Group, LTD., et al. in the U.S. Court of Appeals for the Eleventh Circuit. NCLA contends that the district court committed multiple legal errors and abused its discretion throughout this litigation to the detriment of Appellants Micah Eldred, Carl Dilley, Spartan Securities Group, Island Capital Management, and their legal, procedural, and constitutional rights. Vec discusses the appellate brief filed in SEC v. Spartan Securities. The FBI Paid Social Media to Do Its Dirty Work Mark and Vec discuss the FBI’s payments to social media companies to censor Americans online.

FTC Overreaches on Noncompete Contracts The Federal Trade Commission (FTC) has recently proposed a new rule that would ban employers from issuing noncompete agreements on their workers. The proposed rule would suppress wages, hinder innovation, and block entrepreneurs from starting businesses. Vec criticizes FTC overreach on noncompete contracts. NCLA and CVAF Ask Dept. of Veterans Affairs to Amend Regulation Denying Benefits to Disabled Vets NCLA and Concerned Veterans for America Foundation have filed a petition asking the U.S. Department of Veterans Affairs to amend its controversial regulation regarding the payment of benefits to veterans who have been deemed eligible for disability benefits but who later return temporarily to active duty. The current regulation denies many disabled veterans the benefits to which federal law entitles them. Mark describes NCLA’s petition on behalf of veterans to the Department of Veterans Affairs.

NCLA Wins Major Fifth Circuit en Banc Decision Tossing ATF’s Bump Stock Ban The full Fifth Circuit bench has ruled that a bump stock does not fall within the definition of “machinegun” as set forth in federal law. NCLA represents gun shop owner, Army veteran, and firearms instructor Michael Cargill in Michael Cargill v. Merrick B. Garland, et al. NCLA argued that: (1) the Final Rule conflicts with the statutory definition of a machinegun and thus exceeds ATF’s authority; (2) ATF’s construction is not entitled to Chevron deference; (3) to the extent that the courts determine that the definition of machinegun is ambiguous with respect to bump stocks, they should apply the rule of lenity to determine that bump stocks are not machineguns; and (4) if the statute were interpreted as authorizing ATF’s declaration that bump stocks are prohibited machineguns, then the statute would be an unconstitutional delegation of Congress’s legislative powers. The Fifth Circuit agreed with NCLA on every one of these points. Mark and Vec discuss NCLA’s Fifth Circuit win.

Latest Developments on Gov't Social Media Censorship Vec interviews NCLA Litigation Counsel Jenin Younes on the latest developments in the social media censorship lawsuits that have exposed a sprawling federal censorship regime. CPSC Faces Backlash After Considering Gas Stove Ban Vec, Mark, and Jenin discuss the U.S. Consumer Product Safety Commission’s consideration of a ban on gas stoves.

NCLA Senior Litigation Counsel Peggy Little joins The Yankee Institute to discuss how far agencies have gone to stifle speech in business to even the American Bar Association, her recent litigation in front of the U.S. Supreme Court, and how the ever-growing troubling trend of self-censorship is antithetical to the Founding.

Imagine a world where Congress empowers a private corporation to secretly investigate and punish members of a particular industry. Enter the Public Company Accounting Oversight Board (PCAOB) — often derided as “peekaboo” due to its acronym and infamous secrecy. This private version of the Securities and Exchange Commission receives funding that never requires an appropriation from Congress and employs personnel who are exempt from laws designed to keep regulators in check. This private regulator’s activity is secretly performed by staff employees with no meaningful supervision by any president-appointed government official. There is no jury and no multi-member hearing panel that includes your industry peers. NCLA Senior Litigation Counsel Russ Ryan moderates a panel of distinguished experts to discuss the myriad problems posed by such an obviously unconstitutional private enforcement mechanism, as well as what must be done to restore our fundamental civil liberties. Mike Carvin, a partner at Jones Day, is one of the leading appellate and trial lawyers challenging state and federal regulations on constitutional and statutory grounds, with 11 Supreme Court arguments and numerous high-profile victories, including Free Enterprise Fund v. PCAOB, in which the Supreme Court that held the PCAOB unconstitutional on account of the board members being improperly insulated from Presidential removal authority. Andrew Vollmer, a senior affiliated scholar at the Mercatus Center, was the deputy general counsel at the Securities and Exchange Commission from 2006 to early 2009 as well as serving for many years as a partner in the securities litigation and enforcement practice of Wilmer Cutler Pickering Hale and Dorr LLP.

Agencies wield tremendous power over almost all aspects of American life, enacting thousands of regulations every year that have the force of law. Many agencies, like the Securities and Exchange Commission (SEC) and the Federal Trade Commission (FTC), use agency employees with the title of “administrative law judge" (ALJ) to enforce this staggering edifice of agency-made rules. These are not impartial Article III judges, but agency enforcers with an intractable bias in favor of their employer. Under these circumstances, the process is the punishment. Agency enforcement can be brutal, often destroying the lives, reputations, and businesses of enforcement targets long before any wrongdoing is ever established. Further, in-house adjudication—where your judge’s boss is also your prosecutor—confers an staggering homecourt advantage for agencies (90% for SEC and 100% for FTC). In 2016-17, Michelle Cochran endured one such administrative trial and was facing a second still-unconstitutional proceeding after the Supreme Court ruled in 2018 that the first judge had not been constitutionally appointed. Her suit in federal court—and a later suit by Axon—raised the question: Who decides constitutional questions? Should it be unaccountable ALJs insulated from removal whose very competence to adjudicate is at issue, or Senate-confirmed Article III judges making an unbiased review of the constitutionality of the proceeding before it takes place? For years, Michelle Cochran and Axon Enterprise Inc. fought to have that question answered all the way to the United States Supreme Court. Website: https://nclalegal.org Facebook: https://www.facebook.com/NewCivilLibertiesAlliance Twitter: https://twitter.com/NCLAlegal LinkedIn: https://www.linkedin.com/company/ncla-legal/ Instagram: https://www.instagram.com/nclalegal/

Ohio Supreme Court Rejects Deference to Agency Interpretations The Supreme Court of Ohio, in a 4-3 opinion, denounced agency deference and ruled that the state’s courts need not defer to agency interpretations of ambiguous statutes. NCLA filed an amicus brief 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. Vec touts the Ohio Supreme Court doing away with state deference. Dept. of Education’s Fulbright-Hays Application Includes Discriminatory “Native Language Penalty” Undermining the spirit of international openness and exchange, the U.S. Department of Education’s application process for the Fulbright-Hays Fellowship significantly disadvantages immigrants from non-English-speaking countries and children of such immigrants. NCLA has filed a Motion for Preliminary Injunction in the lawsuit, Edgar Ulloa Lujan, Samar Ahmad, and Veronica Gonzalez v. U.S. Department of Education, et al., asking the U.S. District Court for the Western District of Texas to require the Department of Education to reevaluate Plaintiff Veronica Gonzalez’s 2022 application for the Fulbright-Hays Doctoral Dissertation Research Abroad Fellowship without applying a “native language penalty.” Vec explains NCLA’s preliminary injunction motion to stop the Dept. of Education from discriminating on the basis of country of origin in Fulbright scholarships.

Government Social Media Interference Vec interviews NCLA Litigation Counsel Jenin Younes about developments in Missouri v. Biden, NCLA’s joint lawsuit with the Missouri and Louisiana attorneys-general against government censorship online. California’s Effort to Silence Doctors A California law signed by Governor Gavin Newsom empowers the Medical Board of California to discipline physicians who “disseminate” information regarding Covid-19 that departs from the “contemporary scientific consensus." Vec and NCLA’s Jenin Younes discuss California’s effort to prevent doctors from providing their patients with medical information.

Fifth Circuit Blocks Federal Contractor Vaccine Mandate A panel of the U.S. Court of Appeals for the Fifth Circuit upheld a lower court's ruling blocking the Biden administration's Covid-19 vaccine mandate for federal contractors. In a 2-1 decision, the court said the mandate could be interpreted to give President Joe Biden “nearly unlimited authority to introduce requirements into federal contracts.” NCLA represents clients inJames Joseph Rodden, et al. v. Dr. Anthony Fauci, et al., a similar class-action lawsuit seeking to overturn the vaccine mandate imposed on federal workers. Vec discusses the Fifth Circuit’s prohibition of the contractor vaccine mandate in Louisiana, Mississippi, and Indiana. Lawsuit Against CT’s Freedom of Information Commission This week, Judge John L. Cordani denied the Connecticut Freedom of Information Commission’s (FOIC) motion to strike in the lawsuit, Energy Policy Advocates v. Freedom of Information Commission, et al. NCLA Senior Litigation Counsel Peggy Little joins the show to discuss the latest updates in the case.