Unwritten Law

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by Litigation Counsel Casey Norman to discuss NCLA’s appeal in BASE Access v. National Park Service, now before the U.S. Court of Appeals for the Fifth Circuit.
For decades, the National Park Service has treated BASE jumping as a federal crime in national parks. But Congress never passed a law specifically criminalizing BASE jumping. Instead, the Park Service relies on a 1965 regulation prohibiting the “delivery” of people or objects by parachute or other airborne means—a rule adopted roughly 13 years before BASE jumping emerged in the United States.
Casey explains NCLA’s argument that Congress unconstitutionally transferred criminal lawmaking power to the executive branch and why the Park Service’s decades-old regulation does not actually apply to people who enter a park normally, climb to a jumping point, and parachute to another location within the park.
But before those arguments can even be decided, NCLA must overcome the district court’s ruling that the BASE jumpers lack standing. The court concluded that a pre-enforcement challenge requires an interest in exercising a specific constitutional right—even though several plaintiffs have previously been prosecuted for BASE jumping and want to do it again. Casey explains why NCLA says that standard would effectively force Americans to break the law, risk prosecution, and potentially go to prison before they can challenge an unconstitutional criminal prohibition.
John and Casey also discuss NCLA’s Fifth Amendment vagueness and Administrative Procedure Act claims, the Park Service’s refusal to conduct the planning process it says is necessary to permit BASE jumping, and why NCLA is asking the Fifth Circuit to revive the case.

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by NCLA General Counsel Zhonette Brown to discuss Jacobsen v. Spellerberg, NCLA's newly filed lawsuit advancing a groundbreaking First Amendment argument: education is speech, and parents have a constitutional right to choose the educational speech provided to their children.
Nebraska requires parents to educate their children while directing substantial public funding exclusively toward the state's public-school system. Parents who choose homeschooling or private education because they disagree with the messages conveyed in public schools must bear those costs themselves while continuing to support the public system. NCLA argues that this amounts to viewpoint discrimination and imposes an unconstitutional condition on parents who exercise their First Amendment rights.
Zhonette explains the legal theory developed by NCLA founder Philip Hamburger, the families challenging Nebraska's system, and the century-old Supreme Court precedents recognizing parents' authority to direct their children's education. She and John also discuss what NCLA is asking the court to do and how a victory could expand educational choice in Nebraska.
Show Notes
Public Schools Shouldn’t Be Fiefdoms of Government Speech — Philip Hamburger, National Review
New NCLA Lawsuit: Nebraska’s Educational Scheme Violates Parents’ Free Speech
Education Is Speech: Parental Free Speech in Education — Philip Hamburger, Texas Law Review

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione take on a provocative argument from The New Republic: Is the Supreme Court weakening Congress and creating a more powerful presidency?
Mark and John give author Matt Ford credit for a thoughtful and well-researched article—but think he draws the wrong conclusion from much of the evidence.
They examine major Supreme Court decisions including Loper Bright/Relentless, SEC v. Jarkesy, Cargill v. Garland, Seila Law, and Trump v. Slaughter and argue that the Court's recent jurisprudence is better understood as an effort to restore the constitutional separation of powers.
The president should control the executive branch. Congress should make the laws. Courts should exercise judicial power. And when Congress gives the executive branch too much discretion, the solution isn't to blame the courts for presidential power—it's for Congress to reclaim its constitutional responsibilities.
Mark and John also discuss presidential removal power, administrative adjudication, jury trials, emergency powers, presidential immunity, and why Congress may need to revisit decades-old statutes that hand enormous discretion to the executive branch.

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 Department of Labor v. Sun Valley Orchards, an important case headed to the Supreme Court.
Sun Valley Orchards is a family farm that employs domestic workers as well as foreign workers through the H-2A visa program. After the Department of Labor accused the farm of violating requirements governing its workers, the agency pursued the case through its own administrative adjudication process and ultimately imposed roughly half a million dollars in penalties.
But should an executive agency be able to adjudicate a case involving private rights and impose substantial monetary penalties—or does the Constitution require that kind of dispute to be heard by an independent Article III court?
Russ discusses NCLA's amicus brief, filed with the Buckeye Institute and Americans for Prosperity Foundation, arguing that judicial power belongs exclusively to the judicial branch. The conversation also explores the distinction between so-called "public" and "private" rights, the Supreme Court's decision in SEC v. Jarkesy, and why the Court may finally need to confront its longstanding Atlas Roofing precedent.
With Sun Valley Orchards set to be argued before the Supreme Court, the case could provide important answers about the constitutional limits of administrative adjudication.

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 Andy Morris to discuss National Association of Wholesaler-Distributors v. Ryan, NCLA's newly filed challenge to Colorado's Producer Responsibility Program for recycling.
The lawsuit isn't about opposing recycling. Instead, it challenges Colorado's decision to replace local recycling systems with a statewide program administered by a private organization—the Circular Action Alliance (CAA)—that businesses must join in order to sell certain products in the state.
Andy explains why NCLA argues the law unlawfully delegates governmental authority to a private entity that can set fees, establish rules, and impose significant consequences on businesses without meaningful public accountability.
The discussion also explores the law's First Amendment implications, due process concerns, the Dormant Commerce Clause, and a provision that prohibits businesses from itemizing these recycling fees on customer receipts. Mark, John, and Andy examine why distributors across the country may bear the costs of Colorado's program and what the lawsuit could mean for the constitutional limits on delegating government power to private organizations.