January 2024

NCLA is kicking off 2024 by relentlessly opposing the Administrative State’s abuse of power! This month, the U.S. Supreme Court heard NCLA’s Relentless v. Department of Commerce case, which takes on unlawful Chevron deference, and in February we will return to the highest court in the land to present our oral argument in Garland v. Cargill.

Read below to learn about these cases as well as NCLA’s fight against the SEC’s “Gag Rule,” our recent amicus curiae brief in NRA v. Vullo, and the Court’s agreement to hear Starbucks’s case against the National Labor Relations Board (NLRB).

Thank you for being part of the New Civil Liberties Alliance and for your support. Keep scrolling to learn what’s happening at NCLA now!

The Latest

Latham & Watkins partner Roman Martinez, Seafreeze Fisheries Liaison & General Manager Meghan Lapp, NCLA President and Chief Legal Officer Mark Chenoweth and NCLA Senior Litigation Counsel John Vecchione on the steps of the Supreme Court after the oral argument

Supreme Court Hears Oral Argument in NCLA’s Relentless Case Seeking to Overturn Chevron Deference

Latham & Watkins partner Roman Martinez presented oral argument to the Supreme Court in Relentless Inc. v. Dept. of Commerce, calling for an end to the unconstitutional Chevron doctrine. The lawsuit, argued in tandem with Loper Bright Enterprises v. Raimondo, challenges Chevron and a National Oceanic and Atmospheric Administration (NOAA) and National Marine Fisheries Service rule requiring fishing companies like NCLA’s clients to pay for at-sea government monitors on their fishing boats. NCLA’s clients made their case in the courtroom, and they look forward to a Supreme Court decision by the end of June that will eliminate Chevron and vacate the NOAA rule once and for all. Read more >>>

Our panel of expert appellate litigators discuss Relentless & Loper Bright and if Chevron will be eliminated completely

WATCH: Can Relentless & Loper Bright Kill Unconstitutional Chevron Deference?

Chevron deference purports to require Article III judges to violate their oath of impartiality by yielding to an administrative agency’s interpretation of the law. That means that the judge is forced to rule for the government, even if that judge thinks its interpretation of the law is inferior but tenable. And that’s exactly what happened in the Relentless and Loper Bright cases. Our latest Lunch and Law took place just a week after oral argument before the Supreme Court. Hear from our appellate litigators about what happened and if SCOTUS will finally overturn Chevron deference completely, or only limit its effect. Watch >>>

Cases to Watch

Among other problems, Chevron violates administrative procedure

NCLA Underscores Constitutional Arguments Against Chevron Deference in Its Reply Brief

NCLA filed a reply brief in Relentless Inc. v. Dept. of Commerce, a potential landmark case before the U.S. Supreme Court, calling for an end to the unconstitutional Chevron doctrine. NCLA addresses two core problems with Chevron deference that NCLA founder Philip Hamburger has emphasized for years. First, employing such deference abandons a judge’s Article III duty of judicial independence. Second, when a federal court defers to an agency’s legal interpretation, it denies due process of law to the entity opposing the government in that case. Read more >>>

NCLA client Michael Cargill standing outside federal district court

NCLA Asks Supreme Court to Rule Against ATF’s Unilateral Bump-Stock Ban

NCLA has filed a brief for the Respondent in Garland v. Cargill, calling on the U.S. Supreme Court to determine that the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) unilateral bump-stock ban conflicts with the federal statute defining “machineguns.” ATF’s regulatory ban, which the U.S. Court of Appeals for the Fifth Circuit shot down early last year, reversed the agency’s own long-standing recognition that bump-stock-equipped firearms are not illegal machine guns. NCLA eagerly anticipates presenting oral argument to the Justices in Garland v. Cargill on February 28, definitively vindicating our client Michael Cargill and hundreds of thousands of other Americans. Read more >>>

The U.S. Securities and Exchange Commission building in Washington, D.C.

SEC Denies NCLA Petition Against Agency’s Illegal Gag Rule on Settling Targets of Enforcement Cases

The Securities and Exchange Commission denied NCLA’s long-standing petition to amend the agency’s “Gag Rule,” under which SEC forbids every American with whom it settles a regulatory enforcement case from even truthfully criticizing their cases in public. SEC had ignored the initial petition for more than five years, prompting NCLA to file a renewed petition against the Gag Rule in December 2023. NCLA will challenge SEC’s denial of the petition in court, defending Americans against the Gag Rule’s constitutional and statutory defects. Read more >>>

Click here for more cases to watch.

Friends of the Court

The SEC is limiting Mr. Musk’s speech under its unlawful “Gag Rule”

NCLA Amicus Brief Asks Supreme Court to End SEC Gags on Settling Targets of Enforcement Cases

NCLA filed an amicus curiae brief in Elon Musk v. Securities and Exchange Commission urging the Supreme Court to grant Musk’s cert petition and hear his case about SEC’s “Gag Rule,” which censors every American with whom it settles a regulatory enforcement case. SEC is limiting Mr. Musk’s future speech and ability to speak publicly without preclearance or criticize the agency as a condition of settlement. This is a quintessential instance of prior restraint, which the Supreme Court has called “the most serious and the least tolerable infringement on First Amendment rights.” Read more>>>

NRA v. Vullo will be argued before the Supreme Court on March 18

NCLA Amicus Brief Asks Supreme Court to Apply Proper First Amendment Standard in NRA Case

NCLA filed an amicus curiae brief in NRA v. Vullo, asking the U.S. Supreme Court to determine that New York Department of Financial Services Superintendent Maria Vullo abridged the National Rifle Association’s right to free speech and association. Vullo issued statements effectively threatening to punish banks and insurers via regulatory action if they kept doing business with NRA. She targeted NRA’s pro-Second Amendment viewpoint, a blatant First Amendment violation. Read more >>>

Starbucks is fighting NLRB’s unique and textually baseless preliminary injunction standard

In NCLA Amicus Win, Supreme Court Will Hear Case Against NLRB’s Odd Prelim Injunction Standard

The U.S. Supreme Court took NCLA’s advice and agreed to hear Starbucks’s case against the National Labor Relations Board (NLRB) for depriving the company of property without due process of law via an administrative enforcement proceeding. NLRB used a preliminary injunction it obtained in federal district court without ever establishing that Starbucks likely broke the law. The U.S. Court of Appeals for the Sixth Circuit upheld the injunction per a textually baseless doctrine that allows NLRB to effectively punish an employer based on legal and factual allegations that fall far short of meeting the usual preliminary injunction standard. NCLA filed an amicus curiae brief in Starbucks Corp. v. McKinney, asking the Justices to grant cert, reverse the Sixth Circuit, and overturn NLRB’s special injunction standard. Read more >>>

Click here for more amicus briefs to watch.

In the News

???? Supreme Court Weighs Costly Fishing Mandate, Fox News

???? Fishermen Case Could Impact Key Fed Regulations, Fox News

???? Legal Battle to Limit Federal Regulatory Power, Fox News

???? Supreme Court Takes Up Potential Landmark Case From New Jersey Fisherman, Newsmax

???? Scuttling Chevron Will Put the Ship of State Back on a Constitutional Course, RealClear Politics

???? US appeals court invites Supreme Court to revisit shield for federal agency commissioners, Reuters

???? Lawsuit argues Congress unconstitutionally delegated legislative authority to the EPA, Just the News

Click here for more media mentions.

Administrative Cartoon

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