Unwritten Law

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/

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth, Senior Litigation Counsel John Vecchione, Senior Litigation Counsel Peggy Little, and Of Counsel Margot Cleveland discuss a major settlement in The Daily Wire, The Federalist, and the State of Texas v. U.S. Department of State.
The case challenged a years-long effort in which State Department funds were routed through third-party organizations and technologies—such as the Global Disinformation Index and NewsGuard—to suppress and demonetize certain media outlets. According to the settlement, the government acknowledged that aspects of these activities violated the First Amendment and involved unlawful conduct.
The episode explains how the alleged “boomerang effect” allowed the government to work through foreign and private intermediaries to impact domestic speech, the investigative work that uncovered the scheme, and the discovery that revealed the scope of coordination across agencies, nonprofits, universities, and technology platforms.
Peggy and Margot walk through the key terms of the settlement, including restrictions on government coordination with censorship technologies, limits on grant funding tied to domestic speech, training and compliance requirements, and long-term oversight provisions designed to prevent similar conduct in the future.
The discussion also highlights the role of journalists, plaintiffs willing to challenge the government, and the court in bringing the case forward—and why the outcome may have significant implications for free speech, government accountability, and the limits of federal power.

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by NCLA Litigation Counsel Casey Norman to discuss Pheasant v. United States, a case asking the U.S. Supreme Court to consider whether Congress can delegate the power to create criminal laws to federal agencies.
The case began when a man riding a dirt bike on Bureau of Land Management land was charged with a criminal offense—not because Congress passed a law making his conduct a crime, but because a federal agency created the regulation and attached criminal penalties to it. NCLA filed an amicus brief supporting Supreme Court review, arguing that allowing agencies to define criminal conduct raises serious constitutional concerns.
The discussion explains the nondelegation doctrine, the “intelligible principle” test, and why criminal law raises special due process concerns when agencies—not Congress—decide what conduct can lead to fines or prison time. The episode also explores how modern courts interpret delegation differently than earlier courts and why this case could have major implications for the separation of powers.

Did the government install tracking software on people’s phones without permission?
In this episode of Unwritten Law, Mark Chenoweth and John Vecchione are joined by NCLA Senior Litigation Counsel Peggy Little to discuss Wright v. Goldstein, a case challenging Massachusetts’ use of COVID contact-tracing technology that was allegedly installed automatically on Android phones without users’ knowledge or consent.
The lawsuit argued that the program violated the Fourth Amendment, the Fifth Amendment, and computer intrusion laws by forcing software onto private phones and collecting sensitive data, including location and health information. The case resulted in a settlement requiring the state to delete the data and agree not to use similar technology for five years.
This episode explains the case, the constitutional issues, and why the settlement could have nationwide implications for digital privacy and government surveillance.

In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione and NCLA General Counsel Zhonette Brown discuss their work on Murthy v. Missouri, one of the most significant First Amendment cases in recent years.
They explain how the case began, the discovery battles that revealed government “back-channel” communications with social media companies, the preliminary injunction, the Supreme Court’s standing decision, and the consent decree that followed. They also discuss what the government agreed to in the settlement and what it could mean for free speech and government involvement with online platforms in the future.
This conversation offers a behind-the-scenes look at how the case unfolded over several years—and why its outcome could shape First Amendment law in the years ahead.