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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...
Justices Skeptical of FTC Claim of Vast Powers of Disgorgement in AMG Capital Management, LLC v. FTC
The Supreme Court heard argument in AMG Capital Management, LLC v. FTC this week. The FTC can’t be happy with how it went. On the Covid-required Zoom-call format, Justice Roberts can and does keep much closer rein on time and interruptions. With all the...
Local Governments Blew a Hole in Their Budgets: They Intend to Patch It by Taking Your Property Rights
Anyone with a lick of sense knew that smothering our economy would severely curtail the ability of local governments to generate sales tax revenue. Whether the doors of restaurants and other businesses are shut tight and sealed, such as in New York City and Los...
Midnight Regulation: The State of Regulations thru January 20 is Uncertain
Just as the cherry blossoms bloom here every spring, another regular D.C. occurrence is blooming—midnight regulations. A product of the modern administrative state, the midnight regulation period is the time between a presidential election and the inauguration...
Packing the Court: A Bad Idea Then and Now
The issue of packing the Supreme Court is generating a lot of attention these days—often of the comic sort, if you enjoy watching Democratic candidates from President-elect Biden to the current Georgia runoff candidates bob and weave while not answering the...
En Banc Third Circuit Knocks the U.S. Sentencing Commission Down a Few Pegs
Determining an appropriate punishment for criminal convictions is a delicate business. Traditionally judges have had a lot of latitude in figuring out what makes the most sense based on a particular case. But judges are people too, and they carry the same...
I’ve Got Plenty to Be Thankful For
Hello! I’m Michael DeGrandis. I’m Senior Litigation Counsel at the New Civil Liberties Alliance, and this...
How Big is Big Government? Reasons Every American Should Care About the Administrative State
Author: NCLA Legal Intern Tabitha Kempf Every freshman law and policy aficionado who has spent any amount of time in the ring has almost certainly encountered lively talk about the Administrative State and its vast consequences for our nation. On one hand,...
What Do Burger King, Ford Motor Co., and NLRB Have in Common?
Author: NCLA Legal Intern John Bugnacki Can a court force you to defend yourself against a lawsuit thousands of miles away in a place where something you made, created or said just happened to end up? The Supreme Court may answer this critical question in Ford...
Senate Judiciary Committee Supreme Court Confirmation Hearings: Two Guideposts
On November 2, 2020, Justice Amy Coney Barrett participated in her first two oral arguments as an Associate Justice of the Supreme Court of the United States. Over the next few decades, she will get to ask incisive questions during oral argument to help her...
Bad Regulations Destroy Our Environment
One fundamental problem with having agencies in Washington, DC issue thousands of regulations that apply to everyone and everywhere in the country is that there is simply no way for them to consider the thousands of ways in which their one-size-fits-all...
An Insidious Consequence of the FTC’s Use of Section 13(b) Injunctions: Denial of Counsel
I’ve previously written on the Supreme Court’s taking two cases involving the extent of the Federal Trade Commission’s (FTC) ability to seize property of all kinds under Section 13(b) of the FTC Act. Those cases, FTC v. Credit Bureau Center, LLC, CA19-825, and...
Trump’s “Regulatory Bill of Rights”: OIRA’s Implementing Memorandum is Heading in the Right Direction
Over the summer I wrote about Executive Order 13924, which attempts to lessen the administrative burdens faced by private individuals and businesses by reining in the administrative state. In addition to directing agencies to rescind, modify, or waive...
Some Thoughts on the Nomination of Judge Amy Coney Barrett
So, we have a nominee for the Supreme Court, Amy Coney Barrett, and, as with all such nominations, the prognosticators, pundits, and public want to know how this candidate will approach the issues they believe the Supreme Court is most likely to hear in coming...
Arizona Supreme Court Adopts NCLA-drafted Amendment to Court Rules
The Arizona Supreme Court took a welcome step last month by making it easier to obtain state-court stays of state-agency decisions. It adopted verbatim the NCLA-drafted amendment to court rules. The new rule is scheduled to go into effect on January 1, 2021....
Is Thunder Basin Inescapable?
Author: NCLA Legal Intern Bradley Larson It is a mainstay of the American legal system that people can bring their grievances in front of an impartial judge and obtain “equal justice under law.” However, 26 years ago, in an obscure case called Thunder Basin Coal Co....
The Cost of CDC’s Eviction Moratorium
The Centers for Disease Control issued an order last week imposing a moratorium on most evictions in states that have not already enacted more-restrictive eviction bans. The order effectively creates a nationwide eviction moratorium through the end of the year....
Supreme Court of Virginia Orders Landlords to Provide Rent-Free Housing As a Consequence of COVID-19
It’s become trendy to vilify landlords in the time of COVID-19, with calls for rent strikes and vocal critics accusing landlords of preying on those worst affected by the economic downturn. Of course, residential landlords often are making payments of their own...
CFPB’s Joyride Is Over—It’s Time for President Trump to Take the Wheel
Yesterday, the Southern District of New York validated a (defective, IMHO) civil investigative demand (CID)—an administrative subpoena for documents and information—from NCLA’s client, the Law Offices of Crystal Moroney, P.C. It did so over a number of objections, the...
Where Do I Go to Get My Constitutional Rights Back?
On Friday the 13th of March, President Trump issued his “Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak.” In the ensuing 4 ½ months Governors across the country have used executive orders to lockdown their...
The Supreme Court’s DACA Decision: A commendable effort to embolden APA review or a hollow attempt to ease political tension?
Author: NCLA Legal Intern Andrew Klee Chief Justice John Roberts is praised by some—and criticized by others—for his efforts to maintain the institutional legitimacy of the Supreme Court by keeping an eye toward the broader political context in which cases are...
Deference in a Pandemic
As the nation’s struggle to contain COVID-19 continues into the latter half of 2020, Congress is considering a second major stimulus package to stem the flow of financial (and human) suffering across the sinking economy. The first stimulus package—the CARES Act—was...
Will the FTC Face a Reckoning in the Supreme Court?
On July 9, 2020, the Supreme Court granted certiorari in two closely watched FTC cases. The two cases FTC v. Credit Bureau Center, LLC, and AMG Capital Management, LLC, et al. v. FTC are poised to determine whether a power the FTC has developed through the slow...
Trump’s “Regulatory Bill of Rights”: Where to Go Next
In a previous post, we discussed the new and welcome regulatory changes made by President Trump in Executive Order 13924 last month, a significant victory for civil liberties. But while excitement is warranted for these positive developments, many further reforms, such as objective and enforceable limits delivering upon the principles affirmed in the Order, will be needed to secure these principles in practice.