Unwritten Law

Can New York punish someone for an inaccurate business statement even when no one was deceived, no one relied on it, and no one suffered a financial loss?
That's the First Amendment issue NCLA is raising in the New York civil fraud case against President Donald Trump.
NCLA has submitted an amicus brief to New York's highest court challenging the constitutionality of Executive Law § 63(12), a sweeping statute that NCLA argues allows the state attorney general to punish mere inaccuracies without proving the traditional elements of fraud, including intent to deceive, reliance, and harm.
On this episode of Unwritten Law, Mark Chenoweth and John Vecchione welcome NCLA Senior Litigation Counsel Caitlin Moyna, who authored the brief, to explain why the law poses a threat to free speech far beyond this particular dispute.
They discuss the enormous financial penalty originally imposed against Trump, the intermediate appellate court's decision to strike down that monetary award, and the danger of giving government officials broad discretion to target individuals and businesses.
NCLA's concern isn't limited to Trump. A law that gives prosecutors the power to punish harmless mistakes can threaten anyone's freedom of speech.
The case is headed to oral argument before the New York Court of Appeals on January 5.

A small North Dakota gas station challenged a Federal Reserve regulation that had been on the books before the business even existed. After winning a landmark Supreme Court ruling in 2024, Corner Post's challenge has now resulted in another major victory.
The U.S. Court of Appeals for the Eighth Circuit affirmed a lower court ruling invalidating the Federal Reserve's debit-card interchange fee cap because the agency failed to follow the limits Congress established.
On this episode of Unwritten Law, Mark Chenoweth and John Vecchione welcome NCLA Senior Litigation Counsel Kara Rollins to discuss the latest development in Corner Post v. Board of Governors of the Federal Reserve System.
They explain how debit-card transaction fees work, why the Federal Reserve exceeded its statutory authority, and how the Supreme Court's decisions in Corner Post and Loper Bright are reshaping challenges to federal regulations.
The discussion also examines a troubling trend: After the Supreme Court overturned Chevron deference, federal agencies have increasingly defended their regulatory authority by claiming broad discretion instead.
The central principle is simple: Congress writes the laws. Agencies must follow them.

Can government officials effectively increase someone's prison sentence through guidance that never went through the same approval process as the law itself?
That's the issue at the heart of Beaird v. United States, a case recently argued before the U.S. Supreme Court.
Federal judges use sentencing guidelines to determine the appropriate punishment for criminal offenses. But under a legal doctrine known as Stinson deference, judges must also defer to the Sentencing Commission's commentary interpreting those guidelines—even though that commentary does not necessarily undergo public review or the same congressional oversight as the guidelines themselves.
And those interpretations can mean more time behind bars.
On this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione welcome Senior Litigation Counsel Kara Rollins to discuss the Supreme Court's oral arguments and NCLA's amicus brief opposing Stinson deference.
They explore why the Justices appeared more divided than expected, how sentencing commentary can affect prison terms, and whether the Court's eventual decision could weaken the principles established in Loper Bright, which overturned Chevron deference.
When someone's freedom is on the line, should judges independently interpret the law—or defer to an unelected commission's commentary?

A longtime Washington lobbyist raises concerns with a federal agency, takes those concerns to the White House, and nearly a year later finds himself banned from the agency's offices.
The Consumer Product Safety Commission (CPSC) labeled Edward Krenik a “credible threat” to agency personnel and operations, but according to NCLA's lawsuit, never explained what he supposedly did to deserve the ban or gave him an opportunity to defend himself.
On this episode of Unwritten Law, NCLA's John Vecchione and Mark Chenoweth welcome Senior Litigation Counsel Kara Rollins to discuss Krenik v. Feldman, NCLA's new lawsuit challenging the agency's actions.
They examine Krenik's First Amendment rights to free speech and to petition the government, the possibility of retaliation for his advocacy, and the serious consequences the ban has had for his livelihood.
Can a federal agency shut someone out simply because it doesn't like what he has to say?

Can the president fire a federal prosecutor appointed by judges?
That's the constitutional question at the center of Trump v. Rogoff, a dispute now before the U.S. Court of Appeals for the Ninth Circuit.
After federal judges appointed Roger Rogoff as U.S. Attorney for the Western District of Washington, President Trump fired him less than an hour later. Rogoff sued, arguing that the president lacked the authority to remove a court-appointed prosecutor. A district court granted a preliminary injunction in Rogoff's favor, but the Ninth Circuit stayed that order while the appeal proceeds.
On this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione welcome Senior Litigation Counsel Jacob Huebert to discuss NCLA's newly filed amicus brief.
NCLA argues that the president has the constitutional authority to remove U.S. attorneys, regardless of who appointed them. The brief also raises a broader constitutional concern: whether federal judges should be appointing executive-branch prosecutors in the first place.
Mark, John, and Jacob examine the Supreme Court's recent Trump v. Slaughter decision, the separation of powers, the role of the Senate in confirming federal prosecutors, and why this dispute could have implications far beyond Washington State.