Comments

Comments Regarding Proposed Revision to Rule 8.4(j) of the Illinois Rules of Professional Conduct

COMMENTS SUMMARY – NCLA submitted these comments in connection with the Rules Committee’s consideration of a proposal to, among other things, amend Rule 8.4(j) of the Illinois Rules of Professional Conduct and associated Comments. The proposed amended Rule 8.4(j), which largely mirrors Rule 8.4(g) of the American Bar Association’s Model Rules of Professional Conduct…

Comments in Response to Department of Education: Negotiated Rulemaking Committee

COMMENTS SUMMARY – The New Civil Liberties Alliance (NCLA) appreciates the opportunity to speak at the recent Department of Education public hearing on July 18, 2023 and welcomes the chance to also provide written comment regarding the Negotiated Rulemaking Committee, 88 Fed. Reg. 128 (Jul. 6, 2023). NCLA opposes…

Comments in Response to the Department of Labor: Office of Federal Contract Compliance Programs Proposed Rescission of Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption

COMMENTS SUMMARY – NCLA objects to the Office of Federal Contract Compliance Programs (OFCCP) regulatory regime because Congress never authorized its creation. The Department of Labor (DOL) contends that the 1949 Procurement Act authorizes OFCCP. But that act is silent on employment discrimination.

Comments in Response to the Department of Health and Human Services: Department of Health and Human Services Proposed Repeal of HHS Rules on Guidance, Enforcement, and Adjudication Procedures

COMMENTS SUMMARY – The Department of Health and Human Services (HHS) is attempting to rescind a Final Rule meant to protect due process rights of regulated persons by restricting HHS’s ability to use non-public and non-binding standards to violate fair notice and cause unfair surprise in enforcement actions.

Comments in Response to the Direct Final Rule Proposed by the Consumer Product Safety Commission: Safety Standards for Gates and Enclosures

COMMENTS SUMMARY – By repeatedly refusing to provide free and open access to its safety standards, the Consumer Product Safety Commission (CPSC) has violated the U.S. Constitution, which requires the government to provide the public with access to the law. In response, NCLA has filed a comment objecting to CPSC’s proposed rule, Safety Standard for Gates and Enclosures.

Comments in Response to the Department of the Treasury’s Interim Final Rule: Coronavirus State and Local Fiscal Recovery Funds

COMMENTS SUMMARY – The U.S. Department of Treasury’s Interim Final Rule (IFR) implementing the “Tax Cut Ban” provision of the American Rescue Plan Act of 2021 (ARPA) is unconstitutional. ARPA offers approximately $195 billion to states and their residents to assist with economic recovery from the Covid-19 pandemic, but only on the condition that the states accept the Tax Cut Ban provision of the bill that prohibits reducing state taxes.

Comments in Response to the National Labor Relations Board’s Proposed Rule: Standard for Determining Joint-Employer Status

COMMENTS SUMMARY – On September 7, 2022, the National Labor Relations Board (“NLRB” or “Board”) published a notice and request for comments on its proposed rule in the Federal Register that rescinds and replaces the existing rule on the standard for determining joint-employer status under the National Labor Relations Act (“NLRA” or “the Act”). This submission represents the views of the New Civil Liberties Alliance (“NCLA”) and the Institute for the American Worker (“I4AW”)…

Comments in Response to the New York City Bar’s Proposed Revision to Rule 8.4(g): New York Rules of Professional Conduct

COMMENTS SUMMARY – The New York City Bar has published a proposed amendment to New York Rule of Professional Conduct 8.4(g) that raises significant constitutional concerns. The Proposed Rule is intended to “more effectively guard against harassment and intimidation in the legal community,” but its vague language exposes attorneys to discipline even if they lack any intent to discriminate against others.

Comments in Response to the Fish and Wildlife Service’s Proposed Rule: Regulations Governing Take of Migratory Birds

COMMENTS SUMMARY – Any activity resulting in the incidental death of migratory birds would be considered a crime under a proposed rule by the U.S. Fish and Wildlife Service. FWS’s Regulations Governing Take of Migratory Birds repeals a Trump Administration final rule which correctly defines the scope of the Migratory Bird Treaty Act (MBTA), as Congress did, to exclude criminal liability for the incidental death of migratory birds.

Comments in Response to the Department of Education’s Proposed Priorities: American History and Civics Education

COMMENTS SUMMARY – NCLA argues that the Proposed Priorities conflict with both the policy and the language of the statutes governing the federal Department of Education’s relationship with local educational authorities, and thus they should be revoked. The Department of Education has the power to act only to the extent Congress has authorized it.

Comments in Response to Department of Education’s Proposed Rulemaking: Title IX of the Education Amendments of 1972

COMMENTS SUMMARY – NCLA submitted the following commentary in response to the Proposed Rulemaking—Title IX of the Education Amendments of 1972, 87 Fed. Reg. 41390 (June 23, 2022), which the U.S. Department of Education (ED) has promulgated.

Comments to the Connecticut Bar Authorities: Proposed Rule 8.4(7), Connecticut Rules of Professional Conduct

COMMENTS SUMMARY – NCLA submitted these comments in connection with the Rules Committee’s consideration of amending the Connecticut Rules of Professional Conduct (the “Connecticut Rules”) to include Proposed Rule 8.4(7).

Comments in Response to the Department of Justice: Prohibition on the Issuance of Improper Guidance Documents Within the Justice Department

COMMENTS SUMMARY – NCLA submitted the following comment in response to the Department Justice’s (DOJ) request for comment on its August 19, 2020 interim final rule.

Comments in Response to the Department of Health and Human Services: Department of Health and Human Services Good Guidance Practices

COMMENTS SUMMARY – NCLA submitted the following comment in response to the Department of Health and Humans Services’ (HHS) request for comment on its August 20, 2020 notice of proposed rulemaking.

Comments in Response to the National Telecommunications and Information Administration’s Petition for Rulemaking

COMMENTS SUMMARY – NCLA filed comments objecting to a petition for rulemaking that would penalize digital platforms like YouTube and Twitter for their good-faith efforts to restrict objectionable content.

Comments in Response to the Direct Final Rule Proposed by the Consumer Product Safety Commission: Revisions to Safety Standards for Hand-Held Infant Carriers

COMMENTS SUMMARY – NCLA submitted the following commentary in response to the direct final rule proposed by the Consumer Product Safety Commission (CPSC), Revisions to Safety Standard for Hand-Held Infant Carriers, 85 Fed. Reg. 30605 (May 20, 2020) (Proposed Rule).

Comments in Response to the Direct Final Rule Proposed by the Consumer Product Safety Commission: Revisions to Safety Standards for Children’s Folding Chairs & Stools

COMMENTS SUMMARY – NCLA submitted the commentary in response to the direct final rule proposed by the Consumer Product Safety Commission (CPSC), Revisions to Safety Standard for Children’s Folding Chairs & Stools, 85 Fed. Reg. 18111 (April 1, 2020) (Proposed Rule).

Comments of NCLA in Support of Citizen Petition Filed on Behalf of the Coalition to Preserve Access to Pharmacogenomics (PGx) Information

COMMENTS SUMMARY – If we’ve learned anything from the COVID-19 pandemic, it is that federal agencies that overstep their authority hinder the health and safety of Americans. Other recent regulatory actions by the Food and Drug Administration (FDA) threaten to undermine the ability of clinical laboratories to provide healthcare professionals and patients…

Comments in Response to the Rule Proposed by the Consumer Product Safety Commission: Revisions to Safety Standards for Sling Carriers

COMMENTS SUMMARY – CPSC’s refusal to provide free and open access to the safety standards (or revisions thereto) that it proposes drastically undermines the public’s ability to participate meaningfully in notice-and-comment rulemaking. Considering the constraints imposed by CPSC’s secret lawmaking, NCLA confines its commentary to procedural objections.

Comments in Response to the Rule Proposed by the Consumer Product Safety Commission: Revisions to Safety Standards for Crib Bumpers/Liners

COMMENTS SUMMARY – CPSC’s refusal to provide free and open access to the safety standards (or revisions thereto) that it proposes drastically undermines the public’s ability to participate meaningfully in notice-and-comment rulemaking. Considering the constraints imposed by CPSC’s secret lawmaking, NCLA confines its commentary to procedural objections.

Comments in Response to the Direct Final Rule Proposed by the Consumer Product Safety Commission: Revisions to Safety Standards for Portable Bed Rails

COMMENTS SUMMARY – The public’s ability to participate meaningfully in notice-and-comment rulemaking is drastically undermined by CPSC’s refusing to provide free and open access to the safety standards (or revisions thereto) it proposes. Considering the constraints imposed by CPSC’s secret lawmaking, NCLA confines its commentary to procedural objections.

Comments in Response to the Office of Management and Budget’s Improving and Reforming Regulatory Enforcement and Adjudication Notice

COMMENTS SUMMARY ​- NCLA’s examples document that recommendations that examine whether the current modes of rulemaking, enforcement and adjudication do not always comply with the Administrative Procedure Act (APA) and the U.S. Constitution…

Comments in Response to the U.S. Department of Energy: Proposed Agency Guidance Rulemaking

COMMENTS SUMMARY – Unfortunately, the Bureau’s past use of guidance has been marked by unlawful practices that undermine representative government and the due process of law. Instead of merely explaining existing legal duties, the Bureau has attempted to impose new or additional legal duties

Comments in Response to the Federal Communications Commission’s Proposed Regulation: Procedural Streamlining of Administrative Hearings

COMMENTS SUMMARY – In NCLA’s view, The Streamlining Rule proposes to convert live-testimony hearings into written-record proceedings. Such a conversion would fundamentally reshape Congress’ administrative adjudicatory scheme…

Comments in Response to the Federal Trade Commission’s Proposed Non-Compete Clause Rulemaking

COMMENTS SUMMARY – The Federal Trade Commission’s (FTC) proposed “Non-Compete Clause Rule” would ban the use of non-compete clauses as “an unfair method of competition.” NCLA has filed a Comment objecting to FTC’s attempt to federalize state contract law with virtually no attention to the various interests of the states and market participants developed by the contract law over more than a hundred years…

Comments in Response to the Direct Final Rule Proposed by the Consumer Product Safety Commission: Revisions to Safety Standard for Infant Bath Seats

COMMENTS SUMMARY – In NCLA’s view, the Proposed Rule continues an odious trend of incorporating private standards into the law only by reference, thereby hiding the binding law behind a paywall. The Proposed Rule is therefore unconstitutional…

Comments in Response to the Environmental Protection Agency’s Proposed Rule: Updating Regulations on Water Quality Certification

COMMENTS SUMMARY – NCLA commends EPA’s efforts to provide more certainty and stability in relation to implementing Section 401 of the Clean Water Act. While NCLA appreciates the importance of state sovereignty and the purpose underlying Section 401, it is also important to ensure that one state’s exercise of sovereign power…

Comments in Response to the New York State Education Department’s Proposed Regulation: Substantially Equivalent Instruction for Nonpublic School Students

COMMENTS SUMMARY – In NCLA’s view, the Department must withdraw the Substantial Equivalency Rule because it violates the New York State and United States Constitutions in at least two ways.  First, NYSED may not dictate to private and parochial schools, or their teachers, parents, or guardians, what and how to teach their schoolchildren…

Comments in Response to the Department of Health and Human Services: Proposed Rule for Nondiscrimination in Health and Health Education Programs and Activities

COMMENTS SUMMARY – According to the Executive Summary published in the Federal Register related to the Proposed Rule, “Section 1557 of the Patient Protection and Affordable Care Act (‘PPACA’) prohibits discrimination on the basis of race, color, national origin, sex, age, or disability under any health programs…

Comments in Response to Alcohol and Tobacco Tax and Trade Bureau, Treasury: Modernization of the Labeling and advertising Regulations for Wine, Distilled Spirits, and Malt Beverages

COMMENTS SUMMARY –  While the Proposed Rule’s liberalization of Certificate of Label Approval (“COLA”) regulations reforms an overly burdensome regulatory system, the Labeling Rule fails to address two principal defects in the Bureau’s COLA scheme…

Comments in Response to the U.S. Sentencing Commission: Proposed Amendment for Sentencing Guidelines

COMMENTS SUMMARY – NCLA applauds the Sentencing Commission’s desire to rectify serious issues pertaining to the Guidelines. NCLA does not take a position regarding the appropriate definition of the terms “crime of violence” or “controlled substance offense” or whether a categorical approach should be utilized…

Comments in Response to the U.S. Sentencing Commission: Proposed 2023 Amendments to the Federal Sentencing Guidelines

COMMENTS SUMMARY – NCLA generally supports the Commission’s efforts to resolve the existing Circuit split regarding USSG § 4B1.2, as the current version of that Guideline has invited repeated use of Stinson deference in the district courts, to the detriment of the constitutional rights of countless criminal defendants. As discussed below, faithful application of Stinson deference also invites constitutional mischief…

Comments​ in Response to the United States Sentencing Commission: Proposed 2022-2023 Priorities for Amendment Cycle

COMMENTS SUMMARY – NCLA sincerely appreciates this opportunity to comment on the Proposed Priorities, especially as to paragraph 10: “Multiyear study of the Guidelines Manual to address case law concerning the validity and enforceability of the guideline commentary.” As NCLA has argued numerous times in amicus curiae briefs and a petition for writ of certiorari, our organization is disturbed by the widespread practice of extending judicial “deference” to the United States Sentencing Commission’s Commentary (“Commentary”) on the U.S. Sentencing Guidelines (“Guidelines”)…

Comments in Response to the Department of Education’s Proposed Rule: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

COMMENTS SUMMARY – NCLA sincerely appreciates this opportunity to comment and express its concerns about the Proposed Rule. NCLA abhors unequal treatment on the basis of sex, particularly when it involves sexual harassment or assault. NCLA likewise laments the Department’s history of regulating under Title IX via guidance and trampling the due process rights of accused individuals in the process…

Comments in Response to the Department of Education’s Proposed Rule: Improving Income-Driven Repayment for the William D. Ford Federal Direct Loan Program

COMMENTS SUMMARY – The proposed rule represents the Department’s latest effort to achieve through administrative fiat a massive and untargeted cancellation of student-loan debt that elected members of Congress have repeatedly declined to legislate, authorize, or pay for. By the Department’s own estimates, the scheme would transfer $138 billion in liabilities now owed by relatively affluent, well-educated student-loan debtors onto other taxpayers…

Comments in Response to HHS, CMS: Regulation to Require Drug Pricing Transparency

COMMENTS SUMMARY – The Drug Pricing Rule is fatally flawed in two principal ways. First, CMS lacks the statutory authority to regulate the subject matter of the proposed Rule, pharmaceutical market efficiency. Second, even if CMS has the authority to regulate the subject matter, it lacks the statutory authority…

Comments in Response to the Bureau of Consumer Financial Protection: Request for Information Regarding Bureau Guidance and Implementation Support

COMMENTS SUMMARY – NCLA sincerely appreciates this opportunity to provide commentary on the Bureau’s past use of guidance and its invitation for suggestions as to how it can ensure that its future guidance adheres to law. Unfortunately, the Bureau’s past use of guidance has been marked by unlawful practices that undermine representative government and the due process of law…

More Comments are coming soon. For information on our cases visit NCLA’s Case Summaries page.

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