Blog
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Can an Agency Rewrite the Law to Ban an Entire Industry Overnight? Maybe in New York
One of the most pernicious tools used by the administrative state is the court-created doctrine of agency “deference.” Roughly, this doctrine says that administrative agencies are entitled to interpret ambiguous laws any way they want, and courts are required...
AXON v. FTC Will Put the Administrative State on Trial
There is a case of importance and promise for injecting Constitutional protections in proceedings by administrative agencies. Faced with a recalcitrant Federal Trade Commission (“FTC”), AXON Enterprises, Inc. (“AXON”) sued the FTC in federal court on January 3,...
It’s Time for Agencies to Adopt the Brady Rule in Civil Enforcement Actions
In Brady v. Maryland, the Supreme Court first recognized that a defendant’s due process rights are violated when a prosecutor fails to disclose material exculpatory evidence, evidence tending to show that a defendant is not guilty of a crime or punishment. The Brady...
IT’S ABOUT TIME – The Bureau of Land Management’s Decision to Move Senior Personnel To the West is Long Overdue
Secretary of Interior David Bernhardt has been working for over six months to relocate certain senior Bureau of Land Management (BLM) personnel out of Washington, DC to offices located in the interior west. As a native Wyomingite I can speak from personal experience...
A Catastrophic Assault on our Civil Liberties
The more laws, the less justice. Cicero Imagine if your Senator or Congressman proposed a law that required every American to turn over to the government data for every single trade they made in the market. Your broker could not opt out, nor could you, unless you...
To Griggs Or Not To Griggs, That Is The Question
In 2020, the Supreme Court is poised to decide whether Title VII of the Civil Rights Act prohibits employment discrimination on the basis of sexual orientation or gender identity in Bostock v. Clayton County and R.G. & G.R. Funeral Homes v. EEOC. Title VII...
What We’re Watching – Fleming v. USDA, No. 17-1246
On Friday, November 15, D.C. Circuit Judges Srinivasan, Katsas, and Rao heard oral arguments in Joe Fleming, et al. v. U.S. Dept. of Agriculture, No. 17-1246, which challenges the U.S. Department of Agriculture’s Administrative Law Judges’ appointments and tenure...
Nondelegation, Origination Clause, and IRS’s “Curio” Power
Perhaps you get a pass if you don’t know that there is a federal agency called the Federal Service Impasses Panel that resolves disputes between federal agencies and federal-employee unions. But the Internal Revenue Service is not some obscure federal agency. IRS is...
Lawyers, Heal Yourselves!
Lawyers, heal yourselves! My work at New Civil Liberties Alliance involves reining in the Administrative State. Every day brings new revelations of the vast sweep and deep tentacles of the modern Administrative State across every level of government. Do you know...
Automated license plate reading cameras (ALPRs) snuck up on us. It is time the law caught up with them.
ALPRs are high-speed cameras that take photographs of vehicle license plates when they travel on public roadways. Originally ALPRs were installed primarily on police vehicles as a way to expedite license plate checks for expired registration, active warrants, or...
“Due Process Demands More than This.” – South Carolina Court Finds State’s Asset Forfeiture Regime Unconstitutional
Asset forfeiture is the process local, state, and federal law enforcement agencies use to seize property they allege was used to facilitate a crime or is the result of a crime. It is a vestige of English law that was used to combat piracy. Or maybe more accurately...
The Games Bureaucrats Play: AFPF v. Becerra—Civil Rights Jenga
Ah, the games bureaucrats play. They most often resemble Twister, of course: How well can you contort yourself to follow an agency’s myriad of guidance and regulations? But many of their games are more insidious, implicating fundamental rights including...
White House Executive Orders Cracking Down On Agency Guidance Could Provide Constitutional Protections in Title IX Cases
The Trump Administration has taken an important step in overhauling the administrative state by tackling the rampant abuse of agency “guidance.” Instead of issuing formal rules, agencies have come to rely on informal interpretations, advice, statements...
Time to Clear the Fog of Agency Secrecy from the Swamp
The two executive orders issued by the White House—“Bringing Guidance out of the Darkness,” and “Transparency and Fairness”—promise to start clearing the fog of faulty guidance documents issued by federal administrative agencies in the so-called Washington...
The Next Level of Rulemaking Madness
Despite the fact that both the Constitution and Administrative Procedure Act prohibit the practice, federal agencies often engage in the common-place tactic of issuing informal interpretations, fact sheets, and other forms of “guidance,” the practical...
The Wholesale Nullification of FOIA
The Freedom of Information Act, or FOIA, is one of the most important legal tools Americans have for ensuring the federal government is transparent. Given the mammoth size of the federal bureaucracy, FOIA helps inform Americans of “what...
Ignoring Reality and the Law of Unintended Consequences
The United States Forest Service (“USFS”) dropped the “Roadless Rule” (66 Fed.Reg. 3244) on the public in the last ten days of the Clinton administration, the outcome of which was to essentially deny access to and management of 58.5 million acres of...
The Most Hated Supreme Court Case of its Time – Now Showing on Amazon and at NCLA
New Civil Liberties Alliance recently hosted a showing of Little Pink House, a 2017 fact-based film dramatization of the events leading to the Supreme Court’s 5-4 decision in Kelo v. New London. When that case was handed down in 2005, immediate,...
The SEC’s Made-up Power to Punish
At some point in every lawyer’s career, they become familiar with, what I call, “hallway law.” This is the set of rules that everyone seems to think apply, but don’t actually have any basis in the law. Hallway law exists merely from inertia,...
Merck & Co. v. HHS: Is There a Tao of Chevron?
Taoism is a Chinese philosophy that is often represented by the yin-yang—a symbol of contrasting opposites in perfect balance with each other. From the Taoist perspective, “day” is only “day” in relationship to the night. In other words, all things are...
Deference to the Bureau of Prisons Results in Time Lost for Thousands Under Its Custody
The rule of lenity requires that if a criminal statute is ambiguous, courts must interpret the ambiguity in a manner favorable to the defendant. There are two primary reasons for the rule of lenity. First, criminal laws must provide people with fair notice so people...
FDA Shadow Regulations Target Fido’s Dinner
Answers Pet Food, a brand created by Pennsylvania-based company Lystn to provide high quality, organic pet food, is being targeted by the U.S. Food and Drug Administration for failing to comply with an unofficial, zero-tolerance policy toward naturally occurring...
Going off the Rails: The CA High-Speed Rail Authority
Billions of dollars over budget. Years behind schedule. Hundreds of acres of land taken from Central Valley farmers, who are still waiting to receive their compensation. How did a project to build America’s first high-speed railway become such a wreck? The...
FINRA is a Double-Delegation Disaster
Photo by Ajay Suresh, Rights Reserved The current nondelegation doctrine may not be long for this world, evidenced by the concurrence and dissent in this term’s Gundy v. United States. In its present iteration, the doctrine allows Congress to give away legislative...
A Farmer, An Irrigation Ditch, and the Environmental Protection Agency: What Could Possibly Go Wrong?
David Hamilton is an engineer by training and colorful by nature. He likes to build things and has spent his adult life creating successful natural gas processing companies and utilities in two states, as well as buying and improving farms around his hometown of...