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Let’s Not Celebrate Constitution Day
I was not born an American citizen. I chose to be one. I grew up elsewhere. Few Americans realize how intrigued the rest of the world is with America’s Independence Day and Constitution Day. Few understand the significance of the two documents the two days celebrate—if they’ve read them at all. Fewer still grasp why these two documents are worthy of celebration. But all perceive there is something qualitatively unique about these documents and, therefore, the days that honor these documents.
When Government Gags, Public Loses
Freedom of speech remains a core tenet of democratic societies and free peoples. Speaking up and speaking out are always to be heralded, especially during contentious times in America. But while the freedom to speak is oft rejoiced, few realize that the interests protected by the First Amendment include the freedom to listen. When voices are silenced through suppression, intimidation, or violence, not only does the speaker lose a fundamental liberty, but so too does the listener.
Supreme Court Hints Eviction Moratorium Was Compensable Takings
Last week, the Supreme Court released an eight-page per curiam opinion holding that the Centers for Disease Control and Prevention (CDC) lacked statutory authority to impose and repeatedly extend an eviction moratorium that covered most of the country. The Court reasoned that the public-health statute upon which CDC relied—which referenced measures such as “fumigation” and “pest extermination”—did not confer sweeping authority over landlord-tenant relationships.
Administrative Surveillance Violates the Fourth Amendment
Fourth Amendment rights are crucial in preventing government abuse and securing privacy. It is then of little import whether that abuse or invasion of privacy is perpetrated by local police or the IRS; in both cases, Fourth Amendment rights apply with equal force. But judicial precedent has upended this commonsense view. As with other constitutional provisions, the Fourth Amendment is ignored and downplayed by the administrative state.
The Securities and Exchange Commission Fails on 13 of 14 Counts Against NCLA Clients
After a near decade-long Ahab-like pursuit alleging NCLA clients Spartan Securities Group, Island Stock Transfer, principals Carl Dilley, Micah Eldred, and Dave Lopez were knowingly involved in a massive fraud involving creating fake “shell” companies, SEC lost its entire case against Mr. Lopez, and all but one relatively minor civil charge against Spartan, Island, Mr. Dilley, and Mr. Eldred. SEC’s approach was to throw as much spaghetti against the wall as possible in the hopes that something would stick.
Justice Kagan and Stare Decisis
Supreme Court Justice Elena Kagan has staked out a position for herself as the Supreme Court’s foremost defender of stare decisis. That doctrine holds that today’s Court ought to stand by yesterday’s decisions. Respecting stare decisis sometimes means sticking...
The Eleventh Circuit Helped Cement the Judiciary’s COVID Legacy in NCLA’s Challenge to the CDC Eviction Moratorium
Last week, a panel for the Eleventh Circuit in Brown v. Secretary of HHS determined that the U.S. Center for Disease Control likely lacked any power to issue its nationwide eviction moratorium, but two of the three judges still refused to block CDC’s unlawful...
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....