August 2023
In the scorching heat of August, while most folks were busy soaking up the sun, NCLA was turning up the heat on defending constitutional rights for Americans! In Lemelson v. SEC, we’ve asked the U.S. Supreme Court to hear a case that poses an important First Amendment dilemma. In the Federal Circuit, NCLA is staunchly defending Judge Pauline Newman against the Special Committee’s recent investigation attacking the highly-respected veteran judge. NCLA was not sweating over trivial matters this month. Instead, we were busy ensuring that the real heat stayed on the government’s overreaching attempts to play fast and loose with citizens’ liberties. Keep reading to find out what else is happening at NCLA Now!
Featured
???? WATCH: Federal Judges Try Unlawful Maneuvers to Oust Iconic Judge, Hon. Pauline Newman
The Hon. Pauline Newman’s fellow judges are unlawfully attempting to oust her from a constitutionally appointed lifetime position as a Federal Circuit Court of Appeals judge. A new video released by NCLA exposes the unjust treatment of Judge Newman and showcases her vibrant mind, vigor, and dignity for all to see.
Cases to Watch
Photo: NCLA client Judge Pauline Newman in her chambers at the Federal Circuit court in Washington, DC
Federal Circuit Special Committee’s Actions Once Again Undermine Due Process for Hon. Pauline Newman
Without warning, a Special Committee of the Federal Circuit published documents from their investigation attacking highly-respected veteran circuit judge, the Hon. Pauline Newman. This surprise document drop, just before court-ordered mediation, included a 319-page Special Committee report that falsely accuses her of misconduct and disability. The report recommends that Judge Newman remain barred from hearing new cases, even though the very last page of the report concedes that she passed the cognitive assessment she received. Chief Judge Kimberly Moore and her colleagues released their report prematurely, undermining Judge Newman’s statutory right to respond within 21 days, and preventing the public from being fully briefed. Read more>>
Photo: DOT has hauled gh Testing into its in-house tribunals, where agency officials act as both prosecutor and adjudicator
NCLA Asks Federal Court to Halt Illegitimate U.S. Dep’t of Transportation Administrative Proceeding
NCLA has asked the U.S. District Court for the Southern District of Ohio in gh Package Product Testing and Consulting, Inc. v. Buttigieg to preliminarily enjoin an abusive Department of Transportation enforcement effort against a family-run company. DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) claims the company submitted test reports with minor inaccuracies that violate DOT regulations. NCLA’s client, gh Testing, which tests packages used to safely transport hazardous materials, objects to the administrative proceeding on several grounds: 1) DOT’s in-house adjudicators violate the due process of law by acting as both prosecutor and adjudicator, 2) they are further illegitimate under Article II of the Constitution because they are not appointed by the President or DOT Secretary, and finally, 3) DOT’s in-house proceedings run afoul of the Seventh Amendment by depriving gh Testing of its right to a jury trial. Read more>>
Photo: President Biden still claims the authority to reimpose the federal Covid-19 vaccine mandate at his whim
NCLA Decries Government Effort to Moot Suit Against Biden’s Illegal Federal Contractor Vaccine Mandate
NCLA has filed a brief opposing the government’s motion to dismiss NCLA’s Vanderstelt v. Biden lawsuit against the Biden Administration’s unconstitutional Covid-19 vaccine mandate for government contractors. President Biden withdrew the mandate in May, but still claims the authority to reimpose it at his whim. NCLA has asked the U.S. District Court for the Western District of Michigan not to dismiss this suit against a major abuse of executive power that could resume at any moment, especially as Covid-19 restrictions re-emerge at companies and institutions across the country. Read more>>
Photo: In Lemelson v. SEC, NCLA is asking SCOTUS to hear a case that poses a novel First Amendment question
NCLA Asks Supreme Court to Hear Securities Law Appeal with Major First Amendment Implications
NCLA has filed a petition for a writ of certiorari in Lemelson, et al. v. SEC, asking the U.S. Supreme Court to hear a case that poses an important First Amendment dilemma. May the SEC punish commentary about publicly traded corporations that contains a few purported misstatements or omissions when a jury has cleared the accused of all fraud and deception charges? Surprisingly perhaps, the Supreme Court has never answered this question. So, for now, SEC punishes such speech freely. Read more>>
Photo: EPA is choosing which companies are allowed to produce and sell chemicals commonly used in air conditioners and refrigerators
NCLA Appeals EPA’s Lawless Stranglehold on Refrigeration Companies Amid Dangerous Heat Wave
EPA is picking and choosing which companies are allowed to produce and sell hydrofluorocarbons (HFCs)—refrigeration chemicals commonly used in air conditioners and refrigerators—by using power that Congress unconstitutionally handed the agency. NCLA unsuccessfully petitioned the U.S. Court of Appeals for the D.C. Circuit for an en banc rehearing in RMS of Georgia d/b/a Choice Refrigerants v. EPA. NCLA urged the Court to address the unlawful delegation by Congress on the merits, rather than interposing exhaustion of the issue before the EPA—which is in no position to address it anyway. NCLA plans to continue this fight in other litigation in the near future. Read more>>
Photo: The Mackinac Center for Public Policy headquarters in Midland, MI (Photo Credit: Mackinac Center)
Lawsuit for Cato and Mackinac Center Contests Biden’s New Student Loan Debt Canceling Scheme
NCLA has filed a Complaint on behalf of the Cato Institute and the Mackinac Center for Public Policy in the U.S. District Court for the Eastern District of Michigan to stop President Biden’s utter disregard for federal law and the Constitution. Moving on an accelerated schedule to deter court review, the Department of Education announced its unlawful new scheme before the ink was dry on the Supreme Court opinion striking down its old $430 billion student loan debt cancellation plan. Read more>>
Photo: NCLA’s brief urges the Fifth Circuit to affirm Judge Doughty’s preliminary injunction against the government
Fifth Circuit Should Affirm Injunction Against U.S. Government’s Censorship of Social Media
NCLA, alongside the attorneys-general of Missouri and Louisiana, have filed a brief urging the U.S. Court of Appeals for the Fifth Circuit to affirm U.S. District Judge Terry Doughty’s preliminary injunction prohibiting a number of federal agencies and government officials from pressuring or coordinating with social media companies to suppress First Amendment-protected speech. Federal government defendants in Missouri, et al., v. Biden, et al. have appealed to the Fifth Circuit to overturn the injunction, which protects Americans’ free speech rights on social media. NCLA participated in oral arguments for this landmark case on August 10 in New Orleans. Read more>>
Photo: SEC has issued similar speech bans to silence every person with whom it settles an enforcement case
NCLA Asks Fifth Circuit to Approve Pathway to Challenge Unlawful SEC-Imposed Lifetime Speech Ban
NCLA has filed a brief calling on the U.S. Court of Appeals for the Fifth Circuit to strike down SEC’s lifetime speech ban against its client, Christopher Novinger, in SEC v. Novinger and ICAN Investment Group, LLC. For over five decades, SEC has issued similar bans to silence every person with whom it settles an enforcement case, gravely violating their First Amendment rights by barring them from speaking truthfully about their cases after settling. SEC unilaterally assumed this unlawful power outside the normal administrative process and without Congressional authorization. Read more>>
Click here for more cases to watch.
Friends of the Court
Photo: The Federal Communications Commission building in Washington, DC
Amicus Brief Calls on Fifth Circuit to End FCC’s Unlawful Control over Universal Service Fund
The Federal Communications Commission administers the Universal Service Fund, which provides telecommunications services to rural and impoverished areas of the United States as well as to schools, libraries, and healthcare providers. However, in the Telecommunications Act of 1996, Congress wrote an “evolving” and open-ended statute, leaving FCC to set its own policies and extract money from Americans to fund the USF. NCLA has filed an amicus curiae brief in Consumers’ Research v. FCC, urging an en banc U.S. Court of Appeals for the Fifth Circuit to overturn this illegitimate arrangement, whereby Congress surrendered its exclusive constitutional power to tax and spend. Read more>>
Click here for more amicus briefs to watch.
In the News
Video: NCLA President and General Counsel Mark Chenoweth joins Real America’s Voice to discuss the Supreme Court ruling on the student loan bailout plan and the Biden administration’s next move
???? Judges Attack Judicial Independence, Philip Hamburger and Greg Dolin in The Wall Street Journal
???? Federal Judges Deserve Due Process, Too, The Wall Street Journal
???? Legal Challenges to Biden’s Student Loan Plans Have Borrowers Anxious Ahead of Payment Restart, The Hill
???? 96-Year-Old Judge Deadlocks with Appeals Panel on Fitness Probe, Bloomberg Law
???? Jay Bhattacharya & John Vecchione: Biden’s Social Media Meddling Was Illegal, Reason Podcast
???? A Victory for Free Speech with Jenin Younes, The Bill Walton Show
Click here for more media mentions.
Case Cartoon
Permission granted to reprint with attribution
NCLA is ready to tackle the injustices that the ACLU now ignores. We are today’s civil liberties superheroes!
In Loving Memory
Original NCLA Board member the Hon. James L. Buckley has passed away at the age of 100—a life well lived. NCLA had the honor of hosting Jim at its headquarters in 2019. He candidly spoke to clerks about his decades in all three branches of federal service, had some lunch, and gave out signed copies of his book, Saving Congress from Itself. Among his many contributions to NCLA, Jim ensured that conditions on spending was one of our seven main areas of focus. Requiescat in pace.