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The SEC’s Other ‘Hotel California’ Docket
In an op-ed published last fall by Law360, I called out the Securities and Exchange Commission (SEC) for its appalling dereliction of duty in refusing to decide administrative appeals from enforcement sanctions imposed by the agency’s administrative law judges...
The King George III Prize: Three Years of Calling Out Goverment Abuse
In March 2021, the New Civil Liberties Alliance launched its First Annual King George III Prize, calling out the worst abusers of Americans’ civil liberties. Two years and 96 nominations later, we are nearing the final round of the third installment of what we...
Censorship For Thee and Not For Me – The Mounting Threat Against Free Speech
Freedom of speech has been placed increasingly at risk as we transition to the neoteric “Age of Information/Misinformation/Disinformation,” dominated by the proliferation of social media platforms, hyperbolic news feeds, and a mounting degree of intolerance for speech...
Regulator, Regulate Thyself!
Approximately 111.7 million Americans are cyber-attacked each year. More than 80% of all American firms report that they have been successfully hacked, with 43% of those cyber attacks targeting smaller businesses. Those breaches of security grow in frequency,...
Liberty Means a Trial by Jury
When the people of several states presented our Constitution for ratification in 1787, one issue nearly derailed the adoption of the nation’s charter. The Anti-Federalists vehemently objected to the lack of a guarantee for a civil jury in the proposed document....
What Has the FTC Got Against Vitamins?
Precision Patient Outcomes, Inc. (PPO) and its principal, Margrett Lewis, are being sued in San Francisco by the Federal Trade Commission (FTC) for selling and marketing high-quality dietary supplements and providing consumers with information that the vitamins...
Should Agencies Disgorge Their Ill-Gotten Disgorgement Awards?
What happens when federal bureaucrats get caught red-handed with both fists in the private-sector cookie jar? Do they apologize and return the funds they illegally confiscated, perhaps even with interest? (Okay—stop laughing please.) Of course not. Being a...
Hungry for Power, the FTC Makes Itself a Drink
The Federal Trade Commission has a well-documented history of asserting regulatory powers beyond anything granted to it by Congress. Just last year, in AMG Capital Management, LLC v. FTC, the Supreme Court unanimously rejected the Commission’s decades-long claim that...
Court Reminds Agency That “Constant Monitoring of Your Every Move by the Government Is Frightening to Most People”
They say that an oral argument cannot predict a case’s outcome, but NCLA’s October 5, 2022 argument in Mexican Gulf v. U.S. Department of Commerce may prove to be an exception to that advice. There, a Fifth Circuit panel comprised of Chief Judge Richman and...
The Orange River Seen ‘Round the World – Will the EPA Finally be Held Accountable?
The headwaters of the Animas River begin in the San Juan Mountains of southwestern Colorado. The confluence of streams—Mineral Creek, Cement Creek, and the Upper Animas—define the Upper Animas River basin. The river basin contains hundreds of inactive or abandoned...
Closing the Circle
As the Wall Street Journal recently noted, the FTC’s recent lawsuit against Walmart raises a fundamental constitutional issue regarding the FTC’s authority to initiate lawsuits. The point at issue concerns Congress’s authority to limit the President’s power to remove...
A Backlash Against the Education Department’s Anti-Charter School Agenda
For decades, millions of American families have been dissatisfied with their local public schools, and the political parties have diverged in their approach to this problem. Democrats have generally supported providing more resources to public schools, while...
Labor Regulation Flouts the Fair Labor Standards Act and Requires Supervisor Making $200,000 to Be Paid Overtime
Did you know you can make over $200,000 a year and still be entitled to overtime pay? In Helix Energy Solutions Group, Inc. v. Hewitt, the en banc Fifth Circuit recently concluded as such. This surprising result was made possible by a Department of Labor...
Brave Citizens vs. SEC Overreach
Because our elected branches of government can’t always be trusted to zealously keep one another in check, litigation by individual private citizens has long been among the most effective ways to enforce separation of powers and other structural constitutional boundaries. At least four recent cases involving the Securities and Exchange Commission underscore the power these courageous citizens can unleash by standing up to administrative overreach.
Undercover Threat: The Intersection of the Administrative State and the First Amendment
The Fourth Amendment protects Americans against unreasonable searches and seizures by the government. Absent exigent circumstances or consent, police must obtain judicial authorization (a warrant) to enter a home. As the Supreme Court has repeatedly stated, for example in Riley v. California, the sanctity of a person’s home is among an individual’s core privacy interests.
The Collision of Administrative Law and Civil Liberties
The Fourth Amendment protects Americans against unreasonable searches and seizures by the government. Absent exigent circumstances or consent, police must obtain judicial authorization (a warrant) to enter a home. As the Supreme Court has repeatedly stated, for example in Riley v. California, the sanctity of a person’s home is among an individual’s core privacy interests.
SCOTUS Must Limit Unwarranted Searches to Preserve 4th Amendment Protections
The Fourth Amendment protects Americans against unreasonable searches and seizures by the government. Absent exigent circumstances or consent, police must obtain judicial authorization (a warrant) to enter a home. As the Supreme Court has repeatedly stated, for example in Riley v. California, the sanctity of a person’s home is among an individual’s core privacy interests.
Ill-Considered Decision Revives Judicial Misconduct Complaint
The unconstrained attack on the federal judiciary by Democratic members of Congress is in full swing. That effort was abetted last week by an ill-considered decision by the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States. The Committee revived a judicial misconduct complaint against two federal judges and directed the formation of a “special committee” to conduct a “thorough[] and careful[]” factual investigation.
Is the SEC Warning Fiduciary Advisers Not to Tell the Truth?
The First Amendment famously declares that Congress shall pass no law abridging the freedom of speech, so why is the Securities and Exchange Commission (SEC) discouraging fiduciary investment advisers from accurately disclosing their fiduciary status to...
West Virginia v. EPA – Mouseholes and Major Questions
On June 30, 2022, the Supreme Court issued its ruling in West Virginia v. Environmental Protection Agency, a case concerning the breadth of the Environmental Protection Agency’s authority under the Clean Power Plan—a regulation promulgated under the Obama...
Non-Delegation Doctrine 101
Jon Stewart recently discussed at length on his podcast, “The Problem with Jon Stewart,” until recently, a nearly extinct legal doctrine known as “non-delegation.” Although the Supreme Court has not invalidated any law on non-delegation grounds since the 1930s,...
The Other Cause of Congressional Inaction
Many Americans can tell you that Congress has been unable to pass laws because Republicans and Democrats disagree on the issues. For a bill to pass in the Senate, effectively 60 out of the 100 Senators must vote in favor of it because of a procedure called the...
Beware “Harvard Deference”: Judicial Deference and Race-Based Admissions
Should courts defer to a university’s decision to base admissions decisions on the race of applicants? That issue is likely to be addressed in the upcoming Students for Fair Admissions v. Harvard and University of North Carolina cases, which the Supreme Court has agreed to hear in its 2022-23 term.
DHS Disinformation Board Paused, Government Urge to Censor Continues
A little over a year ago, the Supreme Court issued a unanimous decision in AMG Capital Management, LLC v. Federal Trade Commission. In that case, the Court determined that Section 13(b) of the Federal Trade Commission Act (FTC Act), 15 U.S.C. § 53(b), does not authorize the FTC “to seek, and a court to award, equitable monetary relief such as restitution or disgorgement.”
The Thing No One Is Talking About Post-AMG
A little over a year ago, the Supreme Court issued a unanimous decision in AMG Capital Management, LLC v. Federal Trade Commission. In that case, the Court determined that Section 13(b) of the Federal Trade Commission Act (FTC Act), 15 U.S.C. § 53(b), does not authorize the FTC “to seek, and a court to award, equitable monetary relief such as restitution or disgorgement.”