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 NCLA General Counsel Zhonette Brown to discuss the federal government’s response brief in Choice Refrigerants v. EPA, a case asking the U.S. Supreme Court to revisit the nondelegation doctrine.
The discussion focuses on whether Congress unconstitutionally handed the EPA broad authority to determine how shrinking refrigerant allowances are allocated under the AIM Act—effectively deciding which companies can continue operating and which may be pushed out of the market.
Zhonette explains why the case is not simply about environmental regulation, but about who controls market share and economic liberty in America. The conversation explores the “gaping hole” in the statute identified by NCLA: while Congress specified detailed chemical formulas, phase-down schedules, and military-use carveouts, it failed to explain how the EPA should allocate allowances among competing businesses.
The episode also examines the practical consequences for small businesses like Choice Refrigerants, whose owner developed replacement refrigerants without the resources of major industry players. Mark, John, and Zhonette discuss how the EPA created new entrant carveouts, reshuffled market allocations, and exercised broad discretion that NCLA argues belongs to Congress—not federal agencies.
The conversation further explores broader constitutional themes raised by the case, including preemption, federalism, economic liberty, and the Supreme Court’s recent signals that it may be willing to revive meaningful limits on congressional delegation of legislative power.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione discuss the growing real-world impact of the Supreme Court’s landmark decisions in Loper Bright and Relentless—the cases that ended Chevron deference and restored the judiciary’s independent role in interpreting federal statutes.
As the two-year anniversary of the decisions approaches, Mark and John examine several major lower-court rulings already shaped by the new legal framework. The discussion focuses on a recent Eighth Circuit decision striking down an FCC rule on “digital discrimination” in broadband access, where the court held that the agency exceeded the authority Congress actually granted in statute.
The episode also explores another FCC dispute involving a proposed media merger and the agency’s attempt to avoid judicial review while allowing the merger to proceed. Mark and John explain how courts are increasingly applying Loper Bright to ensure agencies follow the text Congress enacted—not policy preferences agencies wish Congress had adopted.
The conversation highlights how the end of Chevron deference is reshaping administrative law across industries, why the effects are not limited to any one political party or industry, and how the decisions are restoring courts to their constitutional role in deciding what the law means.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione discuss a major victory in Flint Ave. LLC v. U.S. Department of Labor, after the federal government decided not to move forward with its appeal.
The case challenged a Department of Labor rule that dramatically increased the salary threshold for employees classified as exempt from overtime and minimum wage requirements under the Fair Labor Standards Act. NCLA argued that the rule unlawfully elevated salary level over the actual duties employees perform—contrary to the statute Congress enacted.
John explains how the district court permanently set aside and vacated the rule nationwide, why the government’s appeal remained pending for more than a year, and what it means now that the Department of Justice has agreed to dismiss the appeal.
The discussion also explores the practical consequences of the rule for businesses and workers who rely on flexible schedules, including part-time managers and employees who prioritize flexibility over rigid salary structures. Mark and John explain why the decision represents both a major victory for their client, Flint Ave. LLC, and an important reaffirmation that agencies cannot rewrite statutes through regulation.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Litigation Counsel Andy Morris to discuss new developments in Newman v. Moore, an NCLA case asking the U.S. Supreme Court to decide whether Judge Pauline Newman has a right to judicial review after being sidelined from the Federal Circuit for more than three years.
The conversation focuses on a series of newly filed amicus briefs supporting Supreme Court review, including briefs from retired federal judges, former Federal Circuit clerks, legal scholars, and the D.C. Bar. Andy explains why many attorneys have been reluctant to publicly support Judge Newman despite widespread concern within the legal community, and why several amici argue the case raises profound questions about judicial independence and separation of powers.
The episode examines claims that internal judicial administrative processes have been used to effectively remove an Article III judge from active service without impeachment or meaningful judicial review. Mark, John, and Andy also discuss the unusual refusal to transfer the matter to another circuit, concerns about secrecy and selective disclosure, and the argument that Judge Newman’s removal has had a chilling effect on dissent within the Federal Circuit.
The discussion also highlights Judge Newman’s continued public appearances, her extensive record of influential dissents, and why amici argue the Supreme Court should intervene to clarify the constitutional limits of internal judicial disciplinary power.

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 Michael Sztrom and David Sztrom v. SEC, a case raising fundamental questions about administrative power and the right to a fair hearing.
After settling an SEC enforcement action in federal court, the Sztroms were subjected to a second, follow-on administrative proceeding that could bar them from the securities industry—based on the same underlying allegations. Russ explains NCLA’s amicus brief supporting their appeal and why the case challenges the structure of SEC enforcement.
The discussion focuses on whether individuals are entitled to an Article III court and jury trial when the government seeks to impose severe penalties such as industry bans—even when those penalties are labeled “non-monetary.” The episode also explores how SEC settlement practices limit defendants’ ability to challenge allegations, effectively precluding meaningful defense in subsequent proceedings.
Mark, John, and Russ examine how this case builds on recent Supreme Court precedent, why agency adjudication raises serious constitutional concerns, and what’s at stake if courts allow administrative prosecutions to proceed without full judicial safeguards.