Unwritten Law

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by Senior Litigation Counsel Russ Ryan to discuss Smith v. SEC, a case raising fundamental questions about jury trial rights, administrative adjudication, and constitutional exhaustion requirements.
The case began more than a decade ago when FINRA initiated an investigation into George Smith. After years of proceedings before FINRA and the SEC, Smith challenged the process itself, arguing that he was entitled to have his case heard in an Article III court before a jury rather than through an administrative enforcement system.
Russ explains how a Sixth Circuit panel recently suggested that Smith's constitutional arguments may have substantial merit—but nevertheless ruled against him on the ground that he failed to raise those arguments before the SEC itself.
The discussion explores why agencies lack expertise and authority to resolve constitutional questions, how recent Supreme Court decisions such as Axon, Cochran, and Free Enterprise Fund bear on the issue, and why forcing litigants to exhaust constitutional claims before agencies creates a procedural trap.
John and Russ also discuss the amicus briefs supporting rehearing, including filings from the Pacific Legal Foundation, the New Civil Liberties Alliance's allies in the administrative law space, and a brief submitted on behalf of entrepreneur Mark Cuban.
The episode highlights broader questions about due process, administrative power, and whether Americans can truly be said to have "waived" constitutional rights by failing to raise them before agencies that have no power to grant relief.

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by Senior Litigation Counsel Peggy Little to discuss the SEC's Consolidated Audit Trail (CAT)—a massive government database that collects information on virtually every securities transaction made by American investors.
The conversation centers on a new SEC request for public comments on the future of the CAT system, including the possibility of eliminating it altogether. Peggy explains why NCLA has long challenged the CAT, arguing that it creates serious constitutional, privacy, cybersecurity, and separation-of-powers concerns.
The discussion explores how the CAT differs from traditional investigative tools such as the SEC's "blue sheet" process, why the database contains sensitive information about millions of Americans, and how cybersecurity breaches at government agencies raise concerns about concentrating so much financial information in a single location.
John and Peggy also examine questions surrounding the CAT's funding mechanism, the role of self-regulatory organizations, and why NCLA believes Congress never authorized the SEC to create such a sweeping surveillance system in the first place.
The episode concludes with a discussion of the SEC's public comment process and how ordinary Americans can make their voices heard on the future of the CAT.

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 Alana Black to discuss NCLA's amicus brief in Johnson v. United States Congress, a case asking whether constitutional challenges to federal statutes must be heard by Article III courts.
The case involves a disabled veteran challenging a federal law affecting veterans benefits. Rather than allowing his constitutional claims to proceed in federal district court, lower courts relied on the Supreme Court's Thunder Basin and Elgin precedents to route the dispute through an administrative review process.
Alana explains why NCLA believes those precedents are inconsistent with Congress's longstanding practice of ensuring that constitutional challenges to federal laws receive direct judicial review. Drawing on more than a century of statutory history, she shows how Congress repeatedly treated constitutional challenges as a special category of cases deserving heightened judicial attention—not administrative adjudication.
The discussion also explores the relationship between Thunder Basin, Axon, Cochran, Loper Bright, and Relentless, as well as broader questions about separation of powers, judicial authority, and whether administrative tribunals should play any role in deciding constitutional claims.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth, Senior Litigation Counsel John Vecchione, and Senior Litigation Counsel Peggy Little discuss NCLA's reply brief in Powell v. SEC, the case challenging the SEC's decades-old gag rule.
Although the SEC recently rescinded the rule that prohibited settling defendants from publicly denying the agency's allegations, Peggy explains why the case is far from over. Thousands of existing gag orders remain in place, courts may still enforce them, and future administrations could reinstate similar restrictions at any time.
The discussion explores the legal doctrine of voluntary cessation, why agencies should not be able to evade judicial review by temporarily changing course, and why NCLA believes the Supreme Court should still hear the case. Peggy also highlights a surprising development: shortly after the SEC repealed its rule, the CFTC repealed its nearly identical gag rule as well.
Mark, John, and Peggy examine the broader implications for free speech, government accountability, and the First Amendment rights of Americans who settled with regulators but remain unable to publicly challenge the allegations against them.
With the case scheduled for Supreme Court conference on June 25, the episode offers an inside look at one of the most important First Amendment battles involving the administrative state.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth, Senior Litigation Counsel John Vecchione, and General Counsel Zhonette Brown discuss NCLA's recently filed reply brief in Choice Refrigerants v. EPA, a case asking the U.S. Supreme Court to revisit the nondelegation doctrine.
The conversation focuses on a fundamental constitutional question: Can Congress hand an agency virtually unlimited discretion to decide which companies receive valuable market allocations—and which do not?
Zhonette explains why the government's response brief and supporting industry briefs point to different alleged "intelligible principles," highlighting what NCLA argues is the complete absence of any meaningful statutory guidance. The discussion also explores why notice-and-comment rulemaking is not a substitute for legislative accountability and why decisions affecting entire industries should be made by Congress—not unelected administrators.
Mark, John, and Zhonette also compare the case to other recent Supreme Court administrative law decisions, discuss the support of 21 states and numerous public-interest organizations, and explain why they believe Choice Refrigerants presents an ideal vehicle for the Court to strengthen the nondelegation doctrine.
With the petition scheduled for the Supreme Court's June 18 conference, the episode offers an inside look at one of NCLA's most significant constitutional cases.