Unwritten Law

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Senior Litigation Counsel Peggy Little to discuss new developments in Powell v. SEC, a case asking the U.S. Supreme Court to review the SEC’s long-standing gag rule.
The discussion focuses on a wave of 16 amicus briefs filed in support of Supreme Court review, representing a broad coalition of organizations, legal scholars, and former SEC attorneys. Peggy walks through the key arguments raised across the briefs, including claims that the gag rule constitutes prior restraint, compelled speech, and an unconstitutional condition on settlement.
The episode explores how the rule prevents individuals from ever publicly disputing the SEC’s allegations—even after settlement—while allowing the agency to control the narrative. The conversation also highlights the real-world consequences: reputational harm, career disruption, and the reality that most defendants settle not because they are guilty, but because they cannot afford the cost of fighting the government.
Mark, John, and Peggy examine why the rule has persisted for decades, why it stands out as an outlier among federal agencies, and why this case could provide the Supreme Court with an opportunity to address a long-standing tension between administrative enforcement and the First Amendment.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Senior Litigation Counsel Russ Ryan to discuss Lek Securities Corp. v. SEC, a case highlighting extreme delays in administrative adjudication.
The case involves a nearly decade-long delay by the SEC in resolving an appeal from a New York Stock Exchange disciplinary action—raising serious constitutional and statutory concerns. Russ explains how the delay implicates due process, the Administrative Procedure Act’s requirement that agencies act within a reasonable time, and even the SEC’s own internal deadlines.
The conversation explores why such delays matter: individuals and firms can be effectively punished long before a final decision is issued, facing reputational harm, business disruption, and prolonged uncertainty. Mark, John, and Russ also discuss potential remedies, including whether courts should set aside agency actions when delays become egregious.
The episode highlights broader structural concerns about administrative adjudication, including lack of accountability, limited access to judicial review, and incentives that allow agencies to delay decisions without consequence.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by NCLA General Counsel Zhonette Brown to discuss new developments in Choice Refrigerants v. EPA, a case asking the U.S. Supreme Court to revisit the nondelegation doctrine.
The conversation focuses on a wave of amicus briefs filed in support of Supreme Court review, including a brief led by West Virginia and joined by 20 other states, as well as submissions from organizations such as Americans for Prosperity Foundation, Cato Institute, Manhattan Institute, and Southeastern Legal Foundation.
Zhonette explains the key arguments raised in those briefs, including how broad delegations of power to federal agencies can undermine federalism by displacing state authority, why doctrines like the “major questions” rule may not be sufficient to protect the separation of powers, and how shifting regulatory interpretations can create instability for businesses.
The episode also examines arguments that delegation must be grounded in the Necessary and Proper Clause, concerns about courts and agencies effectively supplying their own “intelligible principles,” and why this case is viewed as a strong vehicle for the Supreme Court to take up the nondelegation issue.
Mark, John, and Zhonette close by discussing the road ahead, including the timeline for responses and when the Court is expected to decide whether it will hear the case.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione break down a recent decision from the U.S. Court of Appeals for the D.C. Circuit involving plans to construct a ballroom at the White House.
The case—brought by the National Trust for Historic Preservation—sought to halt construction, raising questions about historic preservation, executive authority, and whether private organizations have standing to challenge government building decisions on aesthetic grounds. The D.C. Circuit ultimately remanded the case to the district court, questioning the basis for an earlier injunction.
Mark and John explore the key legal issues, including whether the plaintiffs have standing, the scope of statutory authority allowing the President to “improve” the White House grounds, and how national security considerations factor into the analysis—particularly regarding underground security features tied to the project.
The episode also examines the practical realities of the case, including the fact that the original structure has already been demolished, raising questions about what relief is even possible at this stage of litigation.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione break down Trump v. Barbara, a closely watched case before the U.S. Supreme Court addressing the scope of birthright citizenship under the Fourteenth Amendment.
John shares firsthand insights from attending oral argument, where the Court considered whether the Constitution guarantees citizenship to all children born in the United States or whether limits may apply to the children of illegal immigrants and temporary visitors. The case stems from an executive order directing federal agencies to reinterpret the Citizenship Clause—raising both constitutional and administrative law questions.
The discussion explores the historical understanding of the Fourteenth Amendment, the role of allegiance and jurisdiction, and key precedents such as United States v. Wong Kim Ark. Mark and John also examine competing arguments presented at oral argument, including concerns about retroactivity, congressional authority, and the practical consequences of altering long-standing interpretations of citizenship.
The episode also highlights commentary from legal scholars, including an article by Philip Hamburger, and explains why the Court’s decision—expected later this term—could have major implications for immigration policy, constitutional law, and the separation of powers.
Philip Hamburger's article in Law & Liberty: Allegiance, Birthright, and Citizenship
https://lawliberty.org/allegiance-birthright-and-citizenship/