President Biden’s Federal Land Grab 

In this episode, guest host Harriet Hageman critiques President Biden’s plan to put 30% of U.S. land area under federal control by 2030.

On January 27, 2021, President Biden signed Executive Order 14008, Tackling the Climate Crisis at Home and Abroad. The Order sets forth the Biden administration’s policies to address climate change. But the “30 by 30” plan within the Order is raising concerns for many farmers and ranchers nationwide. 

The “30 by 30” plan is a scheme to put 30% of U.S. land area under federal control by 2030. According to the U.S. Geological Survey, right now, about 12-percent of the land in the U.S. is in conservation. Within the next 10 years, the federal government hopes to transition nearly 440 million acres into federal protection.To achieve the 30% conservation goal some agricultural land could be impacted, including privately-owned land.

The question for landowners, is will they be forced to conserve their land?

The Limits on Emergency Use Authorization Vaccines  

Later in the episode, Mark explains the limits on Emergency Use Authorization vaccines and why mandating their use for everyone is not wise.

Covid-19 vaccines have been approved only pursuant to an Emergency Use Authorization (EUA). In granting authorization for emergency use, the FDA concluded that the known benefits outweigh the known risks after a few months of clinical trials. The standard is much higher for medical products to receive full FDA approval. In order to obtain such approval, a vaccine must be rigorously tested and monitored for an extended time period. Crucially, the EUA statute mandates that potential recipients be informed of the risks and benefits and that they have the option to accept or refuse the treatment. 

See omnystudio.com/listener for privacy information.

The Challenge Against ATFs Ban on Bumpstocks

NCLA’s Harriet Hageman joins the podcast as a guest host and interviews Litigation Counsel Caleb Kruckenberg about the latest in our challenge against ATFs bump stock ban. 

NCLA recently filed a reply brief in Cargill v. Garland, et al. in the United States Court of Appeals for the Fifth Circuit, seeking to overturn the federal ban on bump stocks and to halt its enforcement. NCLA contends that only Congress, not an administrative agency like the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), can write criminal laws such as the ban on bump stocks.

The Bump Stock Final Rule became effective on March 26, 2019, and some 520,000 bump stock owners nationwide are subject to a 10-year prison sentence unless they destroy or surrender the devices. NCLA represents Austin, Texas resident and gun enthusiast Michael Cargill. Mr. Cargill surrendered two bump stocks to the Austin ATF Field Office in accordance with the ban. This case was the first challenge to ATF’s bump stock ban to go to trial last September. 

NCLA also represents W. Clark Aposhian, a resident of Salt Lake City, Utah, in another lawsuit challenging the ban. In March, the U.S. Court of Appeals for the Tenth Circuit, sitting en banc, voted 6-5 against Mr. Aposhian. NCLA plans on filing a petition for a writ of certiorari with the U.S. Supreme Court in Aposhian v. Wilkinson, et al.

Read more about the Cargill case here: https://nclalegal.org/cargill-v-garland/

Read more about the Aposhian case here: https://nclalegal.org/aposhian-v-wilkinson/

Coral Gables Tracks Every Move You Make Behind the Wheel

Later in the episode, Mark and Caleb provide an update on NCLA’s case against Automated License Plate Readers (ALPR) in the City of Coral Gables, FL. 

This week, NCLA filed two motions for summary judgment asking a judge in Florida’s 11th Judicial Circuit to rule against Coral Gables and the Florida Department of Law Enforcement (FDLE) over their warrantless collection of personal data in violation of client Raul Mas Canosa’s right to privacy under the constitutions of the State of Florida and the United States. 

Mr. Mas Canosa, a resident of Coral Gables, was alarmed when he received 80 pages of documents from the city tracking his vehicle’s movements using Automated License Plate Readers (ALPRs) installed around the city.

The images, captured over a 5-month period, show Mr. Mas Canosa going to the supermarket, to the dry cleaner, to doctors’ appointments, to a meeting with a client, to a city commission meeting, and to various other locations across the city. There are 18 ALPR devices located at major intersections and other strategic points throughout Coral Gables. The locations form a perimeter around the city and were selected to encompass the most traffic possible so the system would maximize surveillance potential. These cameras take pictures of license plates 24 hours a day, seven days a week and then store that data for a period of three years. The information gathered by the ALPRs is searchable and available to 68 different law enforcement agencies, including the FBI.

The Supreme Court held in Carpenter v. United States that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through” digital surveillance. Coral Gables’s ALPR system unlawfully aggregates data about Mr. Mas Canosa’s movements over time and impermissibly shares that data with law enforcement without any particularized suspicion.

Read more about the case here: https://nclalegal.org/coral-gables/

See omnystudio.com/listener for privacy information.

NCLA Announces King George III Prize Winner 

In this episode, Mark and Clegg Ivey announce the King George III Prize winner for worst civil liberties offender at the state level. 

NCLA previously announced that the Centers for Disease Control and Prevention had won the “Georgie” for worst federal abuser on account of its blatantly unconstitutional eviction moratorium. No surprise, the contenders for the state-level King George III Prize are the same governors we profiled during this year’s and last year’s Governors Gone Wild event. 

Read more about the King George III Prize here: https://nclalegal.org/king-george-iii-prize/

Watch this year’s Governor’s Gone Wild here: https://youtu.be/Mwr08HkR7Dk?t=1

Watch last year’s Governors Gone Wild here: https://youtu.be/AlVRLoW_jt8?t=1

Biden Administration Eliminates Fair Adjudication Rights

Later in the episode, Mark and Sheng Li discuss NCLA’s case against the Department of Transportation (DOT) over the Biden Administration eliminating fair adjudication rights. 

NCLA’s lawsuit was filed in the U.S. District Court for the Northern District of Texas on behalf of the Institute for Hazardous Materials Packaging and Certification Testing, Inc. (IHMPACT). It argues that once substantive rights are extended, no federal agency may lawfully take them away by fiat. DOT would have to conduct notice-and-comment rulemaking to repeal the rules.

On April 2, 2021, Buttigieg arbitrarily rescinded DOT’s binding rules, which recognized a comprehensive set of rights, including a new mandate that DOT personnel voluntarily disclose all exculpatory evidence to those targeted by a civil enforcement action. 

Buttigieg seemingly revoked DOT’s due process rules to comply with President Biden’s “Day One” Executive Order demanding that agencies “rescind any orders, rules regulations, guidelines or policies” that supposedly inhibit the federal government’s ability to address “the coronavirus disease 2019 pandemic, economic recovery, racial justice, and climate change.” But Buttigieg did not explain why or how affording due process might “threaten” DOT’s response to these issues. Buttigieg revoked the rules without allowing IHMPACT or the public to comment beforehand, and he did so without considering IHMPACT members’ reliance interests, even though Congress and Supreme Court precedent require it.

Read more about the case here: https://nclalegal.org/institute-for-hazardous-materials-packaging-and-certification-testing-inc-ihmpact-v-peter-paul-montgomery-buttigieg-et-al/

 

See omnystudio.com/listener for privacy information.

The Potty-Mouthed Cheerleader Reaches Supreme Court  

In this episode, Vec explains what’s going on in 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 alleging a violation of her First Amendment rights.

The American Civil Liberties Union, representing Levy, has argued that students need protection from censorship and monitoring of their beliefs.

The Supreme Court took up Levy’s case to decide whether public schools can actually abridge their students’ free expression beyond the schoolhouse gate. The Court’s ruling is expected by the end of June and could clarify the limits of an important 1969 Supreme Court precedent that let public schools punish student speech when it would “substantially disrupt” a school community. The case could impact the free speech rights of America’s 50 million public school students.

Congress Tries to Steal State Taxing Powers 

Later in the episode, Mark talks about NCLA’s amicus brief filed in State of Ohio v. United States Department of the Treasury, et al., a case challenging federal control of state taxation. 

Never before in the history of the United States has Congress conditioned the receipt of federal funds on state governments surrendering inherent and core sovereign taxing powers. The American Rescue Plan Act of 2021 (ARPA), enacted on March 11, 2021, includes a constitutionally alarming provision—the “Tax Cut Ban”—which impermissibly seizes taxing authority from every state. NCLA’s amicus brief, filed in the U.S. District Court for the Southern District of Ohio, argues that the ambiguity at the heart of ARPA cannot be cured by the Department of Treasury’s new guidance seeking to clarify the parameters of the Tax Cut Ban.

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

See omnystudio.com/listener for privacy information.

NCLA Challenges New Dept. of Education Proposed Priorities

In this episode, Mark discusses NCLA comments objecting to the Department of Education’s  “Proposed Priorities – American History and Civics Education,” published April 19, 2021, which would change the way American history is taught in all public schools. The Proposed Priorities would fund “the development of culturally responsive teaching,” a phrase followed by references to Critical Race Theory, the 1619 Project, and the publication and views of Ibram X. Kendi. Regardless of any substantive objections to such curricula, the Proposed Priorities are impermissible because they exceed the agency’s statutory authority.

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. Congress alone can expand an agency’s power. The Proposed Priorities exceed the Department of Education’s statutory grant of authority by attempting to exercise an authority and influence over curricula that was never conferred. In fact, Congress expressly withheld the ability to influence curricula from the agency’s powers.

Read more here: https://nclalegal.org/2021/05/ncla-warns-u-s-dept-of-education-that-its-effort-to-influence-curricular-priorities-is-unlawful/

SCOTUS Decision in CIC v. IRS

Later in the episode, Vec discusses the case CIC Services, LLC v. Internal Revenue Service. A case that asks whether the Anti-Injunction Act’s (AIA) bar on lawsuits for the purpose of restraining the assessment or collection of taxes also bars challenges to unlawful regulatory mandates issued by administrative agencies that are not taxes.

The Supreme Court on May 17th ruled unanimously to reverse the judgment of the Sixth Circuit and sent the case back for further proceedings.

This decision applies to NCLA’s lawsuit against the IRS, James Harper v. Charles P. Rettig, et al. The U.S. District Court for the District of New Hampshire tossed the case in March 2021 under a theory that the AIA bars suits over “the assessment or collection of any tax.” Only this case is not about collecting taxes. Mr. Harper’s lawsuit instead challenges IRS’s violation of his constitutional rights.

In CIC Services, LLC v. IRS, the Court held that the AIA does not bar suits like Mr. Harper’s that do not challenge tax assessment or collection, but rather the IRS’s unconstitutional and intrusive information-gathering practices.

See omnystudio.com/listener for privacy information.

NCLA Asks KY Supreme Court to Uphold Constitutional Governance 

In this episode, Vec discusses the recent joint amicus brief that NCLA filed in Beshear, et al. v. Goodwood Brewing Co., LLC, et al. NCLA criticizes Kentucky Governor Andy Beshear’s attempt to bypass the Kentucky Legislature and hold onto temporary executive powers. 

In January 2021, the legislature voted to limit Governor Beshear’s emergency powers used to address the Covid-19 pandemic. The governor vetoed the bill to limit his powers, and the legislature overrode that veto with the required majority. The governor then resisted the legislature’s lawful withdrawal of power by filing a lawsuit to enjoin the new law as a violation of his executive powers. This lawsuit was brought to enforce the new law. Both sides won their respective lawsuits at the trial court level, which set up a conflict for the state supreme court to resolve.

Read more about the amicus brief here: https://nclalegal.org/amicus-brief-beshear-et-al-v-goodwood-brewing-co-llc-et-al/

PA Voters Curtail Gov. Wolf’s Emergency Powers 

Later in the episode, Mark talks about a recent referendum in which Pennsylvania voters cut back the Governor’s emergency powers.

Pennsylvania voters became the first in the nation to curb their governor’s emergency powers, approving constitutional amendments proposed by Republican lawmakers over Democrat Governor Tom Wolf’s handling of the COVID-19 outbreak.

Approximately 54% of voters backed amending the state constitution to allow a simple majority of lawmakers to terminate a disaster declaration at any time. Currently, such a declaration can only be ended with the governor’s consent or with support from two-thirds of the General Assembly.

Governor Wolf was one of the contestants in NCLA’s King George III Prize competition which can be found here: https://nclalegal.org/king-george-iii-prize/

See omnystudio.com/listener for privacy information.

NCLA Reps The Daily Wire Against NLRB

In this episode, Mark announces that NCLA represented The Daily Wire and persuaded NLRB not to pursue charges over Ben Shapiro’s tweet.

In a victory for social media users everywhere, the National Labor Relations Board (NLRB) has cleared Ben Shapiro, Co-Founder and Editor Emeritus of The Daily Wire, of a meritless charge. A random Twitter user had claimed that Mr. Shapiro violated the National Labor Relations Act (NLRA) when he posted a satirical tweet about a current news event. NCLA successfully defended The Daily Wire, LLC during pre-complaint investigations conducted by NLRB, resulting in a dismissal of the charge. NCLA commends NLRB for refusing to validate claims of wrongdoing by random individuals who were not “aggrieved” by the alleged unfair labor practice.

CFPB Forces Home Providers to Lie to Tenants

Vec updates the audience on NCLA's lawsuit, The Property Management Connection, LLC, et al. v. Dave Uejio, Consumer Financial Protection Bureau, et al.

CFPB is requiring that anyone who seeks to collect unpaid residential rent, including property management companies, real estate attorneys, or housing providers, must now lie to tenants who have been sued for unpaid rent and are subject to eviction.

NCLA filed a lawsuit and motion for temporary restraining order against CFPB in the U.S. District Court for the Middle District of Tennessee for doubling down on the unlawful Halt Order issued by the Centers for Disease Control and Prevention (CDC) last September.

Read more about the case here.

See omnystudio.com/listener for privacy information.

Why Federalizing Voting Rights is a Mistake

In this episode, Vec discusses HR1, the bill to federalize voting rights, and why exclusive DC Circuit oversight of the law would be a mistake.

H.R.1 would federalize the election process and impose unnecessary, unwise, and unconstitutional mandates on the states. The bill represents an extraordinary federal power grab. States would be forced to offer no-excuses mail ballots. They’d have to count votes straggling in 10 days late, provided the postmarks were stamped Election Day. They’d have to set up same-day registration and couldn’t withhold ballots from felons, except those imprisoned.

It makes federal election law more complex, thus creating a chilling effect on political communication through sheer uncertainty and confusion.

 

NCLA Asks SCOTUS to Hear Desrosiers v. Baker

Later in the episode, Mark explains NCLA’s newest cert petition to the U.S. Supreme Court in Desrosiers v. Baker, against Massachusetts Governor Charlie Baker’s state of emergency and pandemic executive orders.

 Despite the greatly improved disease and risk environment since the COVID-19 national emergency was declared fourteen months ago, Massachusetts Governor Charlie Baker’s state of emergency remains in effect today. NCLA filed a petition for a writ of certiorari with the U.S. Supreme Court in Dawn Desrosiers, et al. v. Governor Charles D. Baker, asking the Justices to review the Massachusetts Supreme Judicial Court’s December 2020 ruling that decided the Governor’s restrictions are reasonable and do not violate the plaintiffs’ federal constitutional rights.

Read more about this case here.

See omnystudio.com/listener for privacy information.

The Latest Case to Overrule the CDC’s Eviction Moratorium

A federal judge on May 5th struck down the nationwide halt on evictions, reasoning that the CDC overstepped its authority. 

“It is the role of the political branches, and not the courts, to assess the merits of policy measures designed to combat the spread of disease, even during a global pandemic,” U.S. District Judge Dabney Friedrich wrote. “The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.”

Mark and Vec discuss this decision and the impact it could have on NCLA’s litigation against the CDC’s unlawful eviction moratorium. 

 

CFPB Doubles Down on CDC Order

Later in the episode, Vec explains his new case, The Property Management Connection, LLC, et al. v. Dave Uejio, Consumer Financial Protection Bureau, et al.

The Consumer Financial Protection Bureau (CFPB) is requiring that anyone who seeks to collect unpaid residential rent, including property management companies, real estate attorneys, or housing providers, must now lie to tenants who have been sued for unpaid rent and are subject to eviction.

NCLA filed a lawsuit and motion for temporary restraining order against CFPB in the U.S. District Court for the Middle District of Tennessee for doubling down on the unlawful Halt Order issued by the Centers for Disease Control and Prevention (CDC) last September. NCLA represents The Property Management Connection LLC, attorney Gordon Schoeffler, and the National Association of Residential Property Managers. Each Plaintiff suffered significant economic damages after CDC issued its Order, which forced property owners to provide habitable housing for tenants while continuing to pay maintenance, utilities, and other expenses, but prevented them from requiring tenants to pay their rent.

Read more about the case here.

See omnystudio.com/listener for privacy information.

JMU Title IX Lacks Due Process

In this episode, Mark and Vec discuss NCLA’s newest lawsuit against James Madison University (JMU) and the Department of Education. 

NCLA filed a complaint in the U.S. District Court for the Western District of Virginia against JMU and the Dept. of Education on behalf of Alyssa Reid. NCLA also released a video outlining the case of Ms. Reid, a former employee in the JMU School of Communication Studies. Sadly, Alyssa’s saga provides yet another example of how Title IX has been hijacked and weaponized to exact revenge for a bad breakup. NCLA’s complaint argues that the actions of JMU, assisted by the Dept. of Education, deprived Ms. Reid of her rights and entitlements as protected by the constitutions of both the United States and the Commonwealth of Virginia, as well as by Title IX itself.

Read more about the case here.

 

BOP Ordered to Send Inmates Back to Prison

Later in the episode, Mark asks if the Bureau of Prisons must send people back to prison when they were earlier released to home confinement due to COVID-19? 

Last March, Congress authorized the Justice Department to declare an emergency that would expand the pool of low-level, non-violent federal inmates who could qualify for home confinement, in an effort to contain COVID-19’s spread throughout the federal prison system.

In January, however, the department issued a legal opinion that once the emergency is lifted, the Bureau of Prisons will have no choice but to “recall prisoners in home confinement to correctional facilities” because the authority to send more people home was only temporary.

See omnystudio.com/listener for privacy information.