The Problem with Vaccine Mandates and Vaccine Passports

NCLA Litigation Counsel Jenin Younes joins the show to discuss two questions: (1) may the government lawfully compel citizens to take a new, experimental vaccine? and (2) does New York’s vaccine passport program, which purports to be voluntary, constitute government compulsion? 

D.C. Circuit Vacates FDA Final Rule Wrongfully Regulating Practice of Medicine

“When Congress has spoken in a statute, we assume that it says what it means and that the statute means what it says,” concluded the U.S. Court of Appeals for the D.C. Circuit in an opinion this week in The Judge Rotenberg Educational Center, Inc. v. U.S. Food and Drug Administration. The Court declared that the Food and Drug Administration’s (FDA) Final Rule banning one specific use of an FDA-approved medical device improperly interferes with the practice of medicine. The Court further agreed with NCLA that the Food, Drug & Cosmetic Act does not permit FDA to ban an already-approved device for some uses, but not others. NCLA filed a November 2020 amicus brief making these two points, as well as arguing that FDA ran roughshod over petitioners’ procedural rights and arrogated to itself powers not delegated by Congress.

Read more about the case here: https://nclalegal.org/amicus-brief-the-judge-rotenberg-educational-center-inc-v-u-s-food-and-drug-administration-et-al-luis-aponte-et-al-v-u-s-food-and-drug-administration-et-al-ncla-brief-asks-dc-circuit-to-st/

 

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Feds Can’t Enforce Tax Cut Ban in Ohio

A recent federal court ruling permanently enjoins the Secretary of the Department of Treasury from enforcing the “Tax Mandate” provision of the American Rescue Plan Act of 2021 (ARPA) against the State of Ohio. ARPA, enacted on March 11, 2021, includes the short—but constitutionally alarming—provision, which impermissibly seizes taxing authority from the states. NCLA filed amicus briefs in State of Ohio v. United States Department of the Treasury, et al. and in State of West Virginia, et al. v. United States Department of the Treasury, et al. to support petitioner states against the unprecedented attempt by Congress to usurp state taxing authority.

Read more about the case here: https://nclalegal.org/amicus-brief-state-of-ohio-v-united-states-department-of-the-treasury-et-al/

SCOTUS Cert Denial Kicks Kelo Can Down the Road  

On July 2, SCOTUS denied the petition for a writ of certiorari in Fred Eychaner v. City of Chicago. The case asked the Supreme Court to reconsider Kelo v. New London. At issue is whether the city's argument that it needed to take land from a property owner because the area otherwise could become "blighted" constitutes public use. Justice Thomas in his dissent wanted to correct a mistake he believes the Court made in its 2005 Kelo v. New London opinion, which found that "economic development" satisfied the public use requirement in a New London, Connecticut, takings dispute.

 

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Title IX Due Process Violations with Reed Rubinstein

Reed Rubinstein, former NCLA Senior Litigation Counsel, gives an account of recent developments surrounding Title IX. He is a recognized advocate for administrative law reform and testified to Congress on the need to roll back regulatory overcriminalization. Mr. Rubinstein joined the Trump Administration in January 2017, serving as General Counsel of the U.S. Department of Education. He led or played a material role in many regulatory and Executive actions and orders, including Guidance Regarding Department of Education Grants, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance; Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication. 

Justice Kavanaugh Casts Deciding Vote to Leave CDC Eviction Moratorium in Place

The U.S. Supreme Court refused to lift a moratorium on evictions in a 5-4 vote. Justice Kavanaugh and Chief Justice Roberts were among those who declined to set aside the CDC's unlawful eviction moratorium. But in his brief concurring opinion, Justice Kavanaugh wrote, "The Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium." NCLA was first to file a lawsuit against the CDC moratorium, and the case is currently pending review in the Eleventh Circuit. It could also be the first to have a nationwide effect.

Read more about the case here: https://nclalegal.org/rick-brown-v-secretary-alex-azar-et-al-ncla-challenges-unlawful-cdc-order-that-leaves-landlords-powerless-to-evict-delinquent-tenants/

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SCOTUS Protects Property Rights Against Union Organizers

In a big property rights win, SCOTUS reversed the Ninth Circuit decision in Cedar Point Nursery v. Hassid and ruled in favor of the right to protect private property against intrusion by union organizers. The majority opinion was written by Chief Justice Roberts where he specified that California’s access regulation "grants labor organizations a right to invade the growers' property. It therefore constitutes a per se physical taking" without compensation. 

Justices Defend Nonprofits from State-Sponsored Cancel Culture

SCOTUS also recognized the blatant abuse of administrative power by a series of California attorneys-general in Americans for Prosperity Foundation v. Bonta—the sixth amicus win for NCLA this term. Chief Justice Roberts held that the California Attorney General’s donor-disclosure policy for nonprofits—which began under Kamala Harris and continued under Xavier Becerra—is facially unconstitutional because it burdens donors' First Amendment Rights and is not narrowly tailored to an important government interest.

Read more about the case here: https://nclalegal.org/amicus-briefs-americans-for-prosperity-foundation-v-robert-bonta-attorney-general-of-california/

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NCLA Files Lawsuit to End SEC’s Lifetime Gag Orders 

In this episode, Mark interviews NCLA Senior Litigation Counsel Peggy Little about her new SEC ‘gag order’ case. 

NCLA filed a Motion for Relief from Judgment in the U.S. District Court for the Northern District of Texas on behalf of Mr. Novinger and ICAN Investment Group, LLC, challenging the constitutionality of the Securities and Exchange Commission (SEC) Gag Order that continues to hold them—and the truth—hostage. Mr. Novinger simply wants to speak candidly about SEC’s enforcement proceedings without facing the threat of a reopened prosecution.

In June 2016, Christopher Novinger and SEC reached a settlement of the agency’s claims that he and his company, ICAN Investment Group, LLC (ICAN), violated federal securities law. SEC required Mr. Novinger and ICAN to sign a consent order claiming that he had agreed to be bound forever by a Gag Order—an administrative tool meant to silence people with lifetime speech bans related to their prosecutions. For nearly 50 years, SEC has insisted that all people who settle their cases with the agency must agree to a gag that violates nearly every free speech doctrine.

The Gag Rule violates the First Amendment for a multitude of reasons: 1) it is a forbidden prior restraint on future speech; 2) it is a content-based restriction of speech; 3) it grants SEC unbridled enforcement discretion and silences Mr. Novinger in perpetuity; 4) it forbids truthful speech; 5) it unconstitutionally conditions settlement upon surrender of Americans’ inalienable rights of free speech; 6) it compels speech; and 7) it abridges Americans’ rights of petition long protected by the First Amendment. Any rule that racks up a list of constitutional violations this lengthy compels the conclusion that it could never have been a valid rule in the first place.

Read more about the case here: https://nclalegal.org/sec-v-novinger/

NCLA Revisits Potty-Mouthed Cheerleader Case after SCOTUS Ruling  

Later in the episode, John and Mark discuss the “potty-mouthed cheerleader” Supreme Court case.  

In 2017, Brandi Levy, a Pennsylvania high school student and junior varsity cheerleader, posted a message on Snapchat expressing her disappointment that she did not make the varsity cheerleading squad. While hanging out at a local convenience store, Levy snapped a picture of herself making a middle finger gesture with an expletive-ridden caption complaining about the school and the cheerleading squad. The coach saw this message and told Levy that she would be suspended from the team for the rest of the year. Levy did not simply accept her punishment; instead, she filed a federal lawsuit, Mahanoy v. B.L., alleging a violation of her First Amendment rights.

The Supreme Court held, this week, that Brandi Levy’s speech, while vulgar, did not contain features that would place it outside the First Amendment’s protection and that the school’s interest in discouraging vulgar language in the school community is diminished for off-campus speech. The social media post did not identify the school or target any member of the school community. In addition, the school did not demonstrate that her posts resulted in “substantial disruption” of a school activity or threatened the rights of others.

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SCOTUS Rules on FHFA’s Leadership Structure 

In this episode, Mark discusses NCLA’s amicus win in the Supreme Court case Collins v. Yellen. 

This week, a divided Supreme Court held that the structure of the Housing and Economic Recovery Act of 2008 violated the separation of powers. The law ran afoul of the Constitution by restricting the President’s power to remove the Director of the Federal Housing Finance Agency (FHFA). NCLA filed an amicus brief in September 2020 arguing that the FHFA Director’s protection from removal denied the President’s power to control the actions of Executive Branch officials. 

In Justice Alito’s opinion for the Court, the judgment of the Fifth Circuit was affirmed under reasoning that the prohibition against independent agencies headed by a single official applies broadly. The Court fully endorsed last year’s holding in Seila Law LLC v. Consumer Financial Protection Bureau, which held that it was unconstitutional for the Director of CFPB to be insulated from presidential removal. As NCLA argued, virtually all the factors cited by Seila Law as reasons for concluding that CFPB’s structure ran afoul of separation-of-powers principles are fully applicable to FHFA’s structure: each is headed by a single Director who is appointed to a five-year term and may not be removed by the President before the end of that term except for cause. 

Read more about the case here: https://nclalegal.org/collins-v-yellen/

SCOTUS Delivers Opinion on Appointments Clause Case 

Later in the episode, Vec talks about NCLA’s amicus win in U.S. v. Arthrex, a Supreme Court case about administrative patent judges (APJs) and the Appointments Clause. 

In a win against the Administrative State, a divided Supreme Court ruled that APJs have either been exceeding their proper authority or else have been appointed improperly. If granted unreviewable authority to invalidate existing patents, then APJs are “principal officers” who must be appointed by the President with the Senate’s advice and consent. APJs had previously been appointed by the U.S. Secretary of Commerce in violation of the Appointments Clause of the U.S. Constitution. In 2011 the America Invents Act (AIA) shifted adjudication of important property rights from the judiciary to bureaucrats not directly answerable to elected officials. 

The Court’s opinion, written by Chief Justice Roberts, vacated the judgment of the U.S. Court of Appeals for the Federal Circuit. The Court held that APJs were not appointed to their positions in the manner Article II of the Constitution requires. The Court fixed the constitutional problem by striking a provision of the law that barred the Director of the Patent and Trademark Office from reviewing decisions issued by APJs.

Read more about the case here: https://nclalegal.org/united-states-v-arthrex-inc-et-al-united-states-v-polaris-innovations-ltd-et-al-smith-nephew-inc-and-arthrocare-corp-v-arthrex-inc-and-united-states/

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NCLA Files Appeal to Stop Gov. Murphy’s Rental Contract EO 

In this episode, NCLA Litigation Counsel Jared McClain explains why New Jersey’s Executive Order on security deposits violates the Contracts Clause. 

New Jersey Governor Phil Murphy chose economic winners and losers with Executive Order No. 128 (EO 128), an unconstitutional mandate that forces residential housing providers to credit tenants’ security deposits toward rent payments. NCLA filed its opening brief in Matthew Johnson, et al. v. Governor of New Jersey, et al. this week in the U.S. Court of Appeals for the Third Circuit, seeking a reversal of the trial court’s decision to grant the Governor’s motion to dismiss. 

EO 128 nullifies the rights and obligations of housing providers and tenants who had mutually and voluntarily entered into contracts that explicitly prohibited the use of security deposits to pay rent. By waiving nonwaivable provisions of the Rent Security Deposit Act, a law governing security deposits for residential leases in New Jersey, the Governor violated the Contracts Clause of the U.S. Constitution. If the Contracts Clause is to retain any meaning at all, it must prevent state actions like EO 128 that significantly alter contractual terms.

 Read more about the case here: https://nclalegal.org/matthew-johnson-et-al-v-governor-of-new-jersey-et-al/

NCLA Celebrates Supreme Court Amicus Win on Free Exercise of Religion   

Later in the episode, Mark reports NCLA’s Supreme Court amicus win in Sharonell Fulton, et al. v. City of Philadelphia, et al., barring Philadelphia from excluding Catholic Social Services (CSS), a religious organization that has provided foster-care services through the City for more than 50 years. 

This week, an unanimous Supreme Court ruled in favor of CSS and three affiliated foster parents in their lawsuit against the City of Philadelphia after being excluded from a foster-care program based on their religious beliefs. NCLA filed an amicus brief in June 2020 in support of the plaintiffs, arguing that the administrative process by which Philadelphia instituted its foster care policy is inherently tilted against religious Americans and that the City’s actions violated the Free Exercise Clause of the First Amendment. 

In Chief Justice Roberts’s opinion for the Court, reversing the Third Circuit, he reasoned that Philadelphia’s policies “burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.” 

NCLA’s amicus brief had primarily focused on two related concerns: (1) that the First Amendment fundamentally secures religious equality for Americans and protects them from unequal constraints that discriminate against individuals or organizations on account of their religious beliefs and practices; and (2) that administrative policymaking is inherently unequal and even prejudiced against religious individuals and groups. 

Read more about the case here: https://nclalegal.org/amicus-brief-sharonell-fulton-et-al-v-city-of-philadelphia-et-al/

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Over-Regulation Strangles CA’s Retail Marijuana Sector 

In this episode, Vec discusses the subsidy of California’s legal pot market because of over-regulation. 

The California Legislature recently approved a $100-million plan to bolster the state’s legal marijuana industry, which continues to struggle to compete with the large illicit pot market nearly five years after voters approved sales for recreational use.

California’s legal recreational marijuana industry is so heavily taxed and regulated that the black market still dominates. Many cannabis growers, retailers, and manufacturers have struggled to make the transition from a provisional, temporary license to a permanent one renewed on an annual basis—a process that requires a costly, complicated, and time-consuming review of the negative environmental effects involved in a business and a plan for reducing those harms.

SCOTUS Ruling on First Step Act 

Later in the episode, Vec talks about Terry v. United States and the Supreme Court’s textualist, unanimous ruling on the First Step Act.

In Terry v. United States, the Supreme Court unanimously ruled that people convicted of certain low-level crack cocaine offenses are not eligible for sentencing reductions under the First Step Act, a 2018 law that made some criminal-justice reforms retroactive.

Tarahrick Terry pleaded guilty in 2008 to possession with intent to distribute approximately 4 grams of crack cocaine. He was sentenced to nearly 16 years in prison. In 2010, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity between crack and powder cocaine. In 2018, Congress passed the First Step Act, which made certain provisions of the Fair Sentencing Act retroactive and allowed some people convicted under the old regime to seek reduced sentences.

Terry argued that he was entitled under the First Step Act to seek a sentencing reduction. The Court found that since Terry’s initial crack cocaine conviction did not trigger a mandatory minimum, it was not modified by the Fair Sentencing Act.

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NCLA Reacts to NLRB Brief in Ben Domenech Tweet Case 

In this episode, Mark asks NCLA Litigation Counsel Adi Dynar about the National Labor Relations Board’s (NLRB) Third Circuit brief filed this week, which once again downplays the crucial jurisdiction arguments made by NCLA in FDRLST Media, LLC v. NLRB. 

In its brief, NLRB called NCLA’s subject-matter and personal jurisdiction arguments immaterial. But NLRB cannot ignore U.S. Supreme Court precedent. The First Amendment does not become optional every time NLRB chooses to make it optional.  

NCLA is asking the U.S. Court of Appeals for the Third Circuit to reverse the flawed ruling of NLRB from last November, which concluded that a satirical tweet posted by FDRLST co-founder and publisher Ben Domenech on his private account constituted an unfair labor practice by his employer. FDRLST Media, the publisher of the online magazine The Federalist, is fighting back because NLRB has neither subject-matter jurisdiction over this case nor personal jurisdiction over the company.

Read more about the case here: https://nclalegal.org/joel-f-v-fdrlst-media-llc/

Interior’s Proposed Rule Creates Criminal Liability for Incidental Bird Deaths  

Later in the episode, Mark explains NCLA’s opposition to the U.S. Fish and Wildlife Service’s (FWS) ‘incidental take’ rule for migratory birds. 

Any activity resulting in the incidental death of migratory birds would be considered a crime under a proposed rule by FWS. The rule, 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. 

NCLA filed comments objecting to the proposed rule, which greatly expands the interpretation of the MBTA so as to grant the Department of Justice the discretion to prosecute all actions that have the mere effect of killing migratory birds. According to FWS’s new position, any activity that unintentionally causes the death of a migratory bird—such as running into a bird while driving or a windmill blade striking a bird—is a crime. Individuals must rely on the grace of the federal government to avoid being prosecuted.

The MBTA, first passed in 1918, was created to ensure the sustainability of populations of migratory bird species. It protects more than 1,000 bird species in the U.S. The MBTA focuses exclusively on actions that kill or directly harm protected migratory birds. The statute declares that 22 specifically listed activities regarding migratory birds are flatly unlawful. The words in the listed activities share a common theme: all of them prohibit activity intentionally directed at migratory birds. Not included anywhere in the MBTA’s list of prohibited activities is the phrase “incidental take.”

Read more about the comments here: https://nclalegal.org/comments-in-response-to-the-fish-and-wildlife-services-proposed-rule-regulations-governing-take-of-migratory-birds/

 

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Breaking down the Supreme Court’s Decision in Caniglia v. Strom

In this episode, Vec discusses the Supreme Court’s opinion in Caniglia v. Strom, barring police from seizing guns without a warrant.

The Supreme Court unanimously held that law enforcement cannot legally enter homes without a warrant even in cases where doing so may benefit the public interest.

Judge Grants Class-Action Status in Mexican Gulf Lawsuit 

Later in the episode, Vec celebrates the grant of class-action status to Mexican Gulf charter boat captains in Mexican Gulf Fishing Company, et al. v. Department of Commerce, et al.

The U.S. District Court for the Eastern District of Louisiana granted NCLA’s motion for class certification this week and accepted an amended complaint in Mexican Gulf Fishing Company, et al. v. National Oceanic and Atmospheric Administration, et al. The ruling ensures that all members of the class will benefit from the district court’s rulings on these privacy issues.

In July 2020, the National Oceanic and Atmospheric Administration (NOAA), the National Marine Fisheries Service (NMFS), and the U.S. Department of Commerce published a Final Rule requiring Gulf for-hire vessel owners to submit electronic fishing reports “using hardware and software approved by NMFS.” The plaintiffs, charter boat captains and companies that take customers fishing and sightseeing off the coasts of Alabama, Florida, Louisiana, Mississippi, and Texas, say that the rule is the regulatory equivalent of an “ankle bracelet” (or anchor bracelet!) that constantly monitors their businesses and personal lives. 

The Final Rule mandates that charter boat captains pay for and “permanently affix” a Vessel Monitoring System (VMS) and allow the tracking device to relay and store information at all times. Each captain must contact NMFS every time the vessel leaves port—even if just crossing the bay for dinner.

Read more about the case here: https://nclalegal.org/mexican-gulf-fishing-company-et-al-v-national-oceanic-and-atmospheric-administration-et-al/

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