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Deference Disregards Duty
Deference is ubiquitous in modern administrative law. Chevron, U.S.A., Inc. v. NRDC, Inc. is the most cited case in administrative law and one of the most cited Supreme Court cases in history, having been cited in more than 17,428 cases and 12,879 law review...
Giving Hope to All: Adorning and Preserving Lincoln’s Apple of Gold
The Constitution’s separation of powers and nondelegation doctrine aren’t important because they’re functions and products of the structure of constitutional government, ipse dixit. They are important because there’s an existential nexus between constitutional...
Administrative Law Judge, Jury and Executioner
Second only to the niceties of how a bill becomes a law, the three branches of government and the manner in which their separate functions safeguard liberty are seared into the mind of every American, due to their halcyon days in civics class watching “Schoolhouse Rock.” Unfortunately, many of our leaders have forgotten these basic, yet indispensable principles.
Suffer the Little Children to Pull Off their Handlers’ Constitutional Coup d’Etat
One of the more disturbing tactics of the plaintiffs’ bar when advancing novel theories in mass tort and climate litigation is to put children in the vanguard of their pleading and media storm. The all-too-successful ploy draws media and public sympathy for...
Good-bye, Morrison v. Olson
United States v. Arthrex, last week’s much-anticipated Supreme Court decision which concluded that the Patent and Trademark Appeal Board (PTAB) is unconstitutionally structured, is unlikely to have a major impact on PTAB operations. The Court “fixed” the...
It’s Time for Supreme Court to Restore Uniformity to How Courts Apply Sentencing Guidelines
If Marcus Broadway lived in Tennessee, across the state line from his home in Arkansas, his federal prison sentence would be half as long. The same goes for Zimmian Tabb, who was arrested on the wrong side of the George Washington Bridge in New York. Both men were...
NLRB Attempts to Censor Speech—Again
Elon Musk is well-acquainted with the Administrative State’s obsession with his tweets. The Tesla CEO, already the subject of various Securities and Exchange Commission proceedings based on prior tweets, has drawn the interest of the National Labor Relations Board (NLRB) for questioning the benefits of union membership on Twitter.
You Need a Court Order for That – IRS Seizes Private Financial Information of Cryptocurrency Holders
Cryptocurrency use has burst into the mainstream. Once perceived as complex and confusing, digital currency has quickly become a staple asset in many investors’ portfolios. Today, tens of millions of Americans own cryptocurrency as a means to diversify their...
Governor Cuomo’s Unconstitutional Vaccine Passport Program
At the end of March 2021, New York Governor Andrew Cuomo announced that he was launching the nation’s only Vaccine Passport Program. In order to gain entry to venues that host large-scale events, including sports stadiums and concert halls, people must scan...
James Madison University’s Title IX Investigation Flouts Due Process Rights
Alyssa Reid began her professional career in the summer of 2012 when James Madison University (JMU) hired her as the Assistant Director of the “Individual Events Team” in the School of Communication. Reid was passionate about education and teaching. She felt...
Supreme Court Agrees with NCLA and Cuts Back the FTC’s Power Grab Through Section 13(b)
The Supreme Court in AMG Capital Management, LLC v. FTC vastly cut back the FTC’s ability to freeze and then seize its targets' assets to the tune of billions of dollars. NCLA filed an amicus brief on behalf of AMG and the Court largely adopted our view of the...
Lunch and Law: The Administrative State – Reagan, Trump, and Biden
In April we celebrate Earth Day. Appropriately, this month NCLA invited distinguished guest panelist William Perry Pendley, who served as Deputy Director of the Bureau of Land Management (BLM) for Policy and Programs, to sit down with NCLA Senior Litigation...
The Problem with “Percolation”
In Federalist Number 78 Alexander Hamilton wrote about the importance of not only an independent judiciary, but one that had the courage to protect liberty. Judges, he said, have a “duty” “to declare all acts contrary to the manifest tenor of the Constitution...
Federal Securities Law Unconstitutionally Deprives Defendants of Jury-Trial Rights While Granting Those Rights to Itself
The Seventh Amendment to the U.S. Constitution guarantees the right to a jury trial in civil suits filed in federal court. Federal officials have never liked it when the target of a federal enforcement action insists on a jury trial; they apparently fear that...
CDC Does Not Have Power to Regulate Access to Courts and Its Order Needs to Be Struck Down
NCLA has filed a class-action lawsuit on behalf of housing providers who have been frozen out of state court under penalty of criminal sanction by the Center of Disease Control’s unlawful order preventing access to courts to recover property when a tenant...
Should Federal Courts Defer to State-Agency Interpretations of Federal or State Law?
Must federal courts defer to a state agency’s interpretation of federal law? Two Eighth Circuit judges say yes. Eleven Ninth Circuit judges largely ignore the issue. Only Eighth Circuit’s Judge David Stras says no. Judge Stras is right. The Eighth Circuit has...
Biden Title IX Order
On International Women's Day, President Joe Biden issued an executive order “direct[ing] the Department of Education (ED) to review all of its existing regulations, orders, guidance, and policies” for the ostensible purpose of “guarantee[ing] an educational...
Flattening the Curve on Our Civil Liberties: Are Courts Social Distancing from the Constitution?
We just observed the first anniversary of “15 days to flatten the curve.” Since then, we’ve learned at least two important lessons. First, there’s no quick fix to flattening an infection curve. Second, the virus may be more resilient than our civil liberties....
The Real Cost of CPSC’s Hidden Law to New Parents
Photo: NCLA client Lisa Milice and her baby As I have recently found out, there are many things to worry about as a new or expecting parent. The joy of welcoming a new life into the world can easily be eclipsed by a wide range of concerns. Not to mention, the nearly...
Cancel Culture on Trial
An important case will be heard this term at the Supreme Court out of the Ninth Circuit—and the stakes could not be higher. Americans for Prosperity Foundation v. Becerra challenges a California Office of Attorney General’s lawless demand for non-profits’ donor...
One Mother’s Fight to See the Law
When mother-to-be Lisa Milice was researching nursery products to buy for her first child, she ran into a paywall. The problem was that, although the U.S. Consumer Product Safety Commission adopts binding safety standards for infant and nursery products,...
How Executive Branch Can Override Congress’ View of Criminal Law in Court
Let’s try a thought experiment. Imagine a criminal law that says, “It’s a felony to do bad things.” That’s it. That’s the whole law. There’s no further explanation. I have a pretty solid understanding of what I think are “bad things.” I guarantee, however, that...
Axon Suffers a Defeat in the 9th Circuit but Both Majority and Dissent See the Problem
We have discussed Axon v. FTC before and followed it closely since its inception. On January 28, 2021, the Ninth Circuit gave us more to consider. First, a recap is in order. Axon Enterprise, Inc. (Axon) is a corporation that makes law enforcement equipment...
The Substantial Evidence Standard of Reviewing Administrative Fact-Findings Is Unconstitutional
Federal court appellate rules (and most state appellate and high courts) require party briefs to include a “standard of review” section (Federal Rule of Appellate Procedure 28(a)(8)(B)). Lawyers tend to pay little, if any, attention to this section. Usually, a...
Judges Swallowing Their Whistle
There’s a frustrating phenomenon in sports where referees will “swallow their whistles” in a close game. At a pivotal moment, a referee will fail to call a foul to avoid the appearance that the refs determined the outcome of the game. The logical fallacy the...