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The First Amendment’s Forgotten Protection: The Right to Receive Information
People often lament, “well, we didn’t know about that back then.” Is this a product of ignorance or merely a product of selective publication of information? After NCLA clients Dr. Jay Bhattacharya, Dr. Martin Kulldorff, Dr. Aaron Kheriaty, Jill Hines, and their...
How State Governments Escape Consequences for Unconstitutional Covid Policies
During the Covid era, state and local governments across the nation flagrantly violated Americans’ constitutional rights for months in some cases and years in others in an ostensible effort to quell the virus’s spread. Yet, with some notable exceptions, the...
The President’s Prerogative Courts
The Star Chamber. Even 383 years after its abolition, merely invoking its name brings a vague thrum of apprehension. Not a spike of fear; no, it’s nothing quite that bracing. More of a distantly remembered wrongness, a subliminal but constant worry that the ground...
Title IX: A shield for all or a weapon against the accused?
Title IX of the Education Amendments of 1972, provides that: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving...
Is It Time to Let Taxpayers Challenge Lawless Agency Spending?
If there’s anything good about the current Administration’s relentless raid on the public fisc to give away billions of taxpayer dollars to relatively well-educated and affluent student-loan debtors—and let’s face it, there really isn’t—it should be a serious...
Controlling the Language: How Government Puppeteers the Minds of Millions
George Orwell ominously warned “but if thought corrupts language, language can also corrupt thought.” In a nation premised on the ultimate rebellion, the government would never police speech to conform to one narrative, would it? Orwell’s words were not...
Beyond the Statute: Government “Logic” and the Cargill Case
Photo: Michael Cargill, Central Texas Gun Works owner in front of the United States District Court for the Western District of Texas Later this month, NCLA’s second of three cases before the Supreme Court this term will be argued, Garland v. Cargill. Like the...
Will Relentless and Loper Bright take Occam’s Razor to Chevron and its Barnacles?
Photo: John J. Vecchione, NCLA Senior Litigation Counsel, Meghan Lapp, Fisheries Liaison & General Manager, Seafreeze, Ltd., Mark Chenoweth, President and Chief Legal Officer, and Roman Martinez, Latham & Watkins Partner, give their comments at the Supreme...
The Supreme Court Must Discard Qualified Immunity to Hold Those in Power Accountable to the Law
One of the foundational principles of the United States is that we are a country of laws, not men—a place where the lowliest of the low are subject to the same laws and rules as the most exalted and powerful. Most of us learned in our middle school civics class...
Chevron Deference Tempts All Our Constitutional Actors to Behave Badly and It Should Go
This week, we go to the Supreme Court in Relentless v. Commerce for argument on whether Chevron deference—the deference given to agencies when they interpret an ambiguous or silent statute—continue or be abandoned by the Court. Both our briefs and those of the...
The End of Chevron? More Like a Return to Fairness
Clickbaity titles and hyperbolic claims are, yet again, dominating the coverage of the Supreme Court’s docket. Among those are the suggestions that this term’s Relentless and Loper Bright cases are the “end” of everything from the environment to the government...
NCLA’s Hat Trick Against Transportation Department Provides Roadmap for Others
NCLA lawsuits have forced the Department of Transportation to abandon an abusive administrative enforcement action against a small family-owned business for the third time this year. These cases provide a roadmap for others to follow when DOT drags them...
The Supreme Court Must Quit Qualified Immunity
Justices Sotomayor and Thomas agree. Professors Neal Katyal and Philip Hamburger agree. And the American Civil Liberties Union (ACLU) and the New Civil Liberties Alliance (NCLA) agree. The United States Supreme Court should reconsider its qualified immunity...
Protecting Judicial Independence: Providing Accused Judges a Fair Administrative Forum
A new kind of administrative threat has emerged: use of the federal judiciary’s internal administrative machinery to bypass the Constitution’s impeachment process and sideline a disfavored judge. That’s what is happening in the U.S. Court of Appeals for the...
The Supreme Court Should Begin to Phase out Major Questions in Favor of Non-Delegation
“[i]f nothing more were required, in exercising a legislative trust, than a general conveyance of authority—without laying down any precise rules by which the authority conveyed should be carried into effect—it would follow that the whole power of legislation might be...
Opt-Out Versus Opt-In, the Inverted Presumption, and the CAT
Photo: Massachusetts Office Of Travel & Tourism “We do it this way on all other campuses. If we cannot do it this way, we’ll leave Amherst.” That was the ultimatum served to me by a representative of MASSPIRG (Massachusetts Public Interest Research Group) fourteen...
Neutral Magistrate Should Resolve Our Legal Contests, Not One of the Contestants
“I don’t know what you mean by ‘glory,’” Alice said. Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’” “But ‘glory’ doesn’t mean ‘a nice knock-down argument,’” Alice objected. “When...
Clearly Established: SEC and CFTC on Notice of Their Persistent Free-Speech Violations
When a judge says something is illegal, most people stop doing it and change their ways. Not so with federal agencies like the Securities and Exchange Commission and the Commodity Futures Trading Commission. In recent years, three different federal judges have...
Freedom of Speech: Tyranny’s Greatest Enemy (and Why We Should Care)
“In nonsense is strength.”[1] These are Kurt Vonnegut’s words, but they also happen to be the message that the U.S. federal government sends to its citizens with each unapologetic justification of its ongoing efforts to censor First Amendment-protected speech. ...
I Met Judge Pauline Newman. She Proves Age Is Just a Number
When I decided to spend my summer as an intern at the New Civil Liberties Alliance, I had no idea I'd change my mind about the U.S. Constitution. But conversations with our elders have a way of changing our perspective. U.S. Circuit Judge Pauline Newman...
Government Speech: Who’s Responsible When the Government Lies…and People Die?
In two recent oral arguments at the Fifth Circuit Court of Appeals, including in NCLA’s case Missouri v. Biden, the issue of government speech rights was raised. In both cases the US Government argued it has speech rights which allow it to put out messaging and...
New York and Massachusetts: Your Digital Devices Are Constitution-Free Zones
The digital age is dead; long live the digital age. Once, we understood as a matter of common sense that what we posted online or did on our phones, while digital, was still real. A mean Tweet is mean speech; and your digital files are property, because why...
The Major Questions Doctrine Is Compatible with Textualism
The Supreme Court in several recent cases has explicitly applied what it refers to as the “major questions doctrine” (MQD) when construing the meaning of federal statutes. Under the Doctrine, in “extraordinary” cases the Court will not accept a federal agency’s...
If John Marshall Is Right, Chevron Is Wrong!
[The following is an abridged transcript of a speech given by Thomas Dupree on July 13, 2023, during the Hamburger-Frankfurter Debate at the New Civil Liberties Alliance. Mr. Dupree was assigned the ‘Chevron must be overturned!’ side of the debate.] In Marbury...
Click, Share, Retweet… DELETE: Unconstitutional Government Censorship of Social Media Platforms
Are social media platforms truly “social?” Twitter’s mission statement reads, “To give everyone power to create and share ideas and information instantly, without barriers.” Facebook’s mission statement includes, “the power to build community and bring the...