Unwritten Law

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione discuss the D.C. Circuit’s recent decision in Heroes Technology v. Consumer Product Safety Commission.
NCLA challenged a CPSC safety rule affecting infant support cushions. Congress created a streamlined rulemaking process for a limited category of “durable infant or toddler products,” including products such as cribs, playpens, and high chairs. But CPSC used that shortcut to regulate infant support cushions—and potentially thousands of other products that NCLA argues fall well outside the category Congress had in mind.
Mark, who served as a CPSC commissioner shortly after Congress created this expedited process, explains why he believes the agency has stretched the law far beyond its original purpose. He and John discuss the D.C. Circuit’s decision upholding the rule, what counts as a “durable” infant product, and why allowing regulators to bypass the normal rulemaking process can have consequences not only for the rule of law, but for consumer safety itself.
The conversation also explores regulatory creep, statutory interpretation, and an important lesson for Congress: when lawmakers leave statutory lists open-ended, agencies may find ways to expand exceptions far beyond their intended scope.

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 Jacob Huebert to discuss NCLA’s amicus brief in Rogoff v. Trump, a case raising an unusual separation-of-powers question: Should federal judges be allowed to appoint the U.S. attorneys who prosecute cases in their own courts?
Federal law allows a district court to appoint a U.S. attorney when a temporary appointment expires without Senate confirmation. That practice dates back to the Civil War era. But NCLA argues that it conflicts with the Constitution’s separation of powers and the Appointments Clause. U.S. attorneys exercise substantial executive authority, deciding whom to prosecute, what charges to bring, and which enforcement priorities to pursue. NCLA argues that officials wielding that kind of power should not be selected by judges.
Jacob explains why NCLA argues U.S. attorneys are principal officers who must be nominated by the President and confirmed by the Senate—and why cross-branch appointments would remain constitutionally problematic even if they are considered inferior officers. The discussion also explores judicial independence, the appearance of impartiality when a judge appoints the prosecutor appearing before that court, and the practical consequences of a system increasingly reliant on temporary and court-appointed U.S. attorneys.
Mark, John, and Jacob also debate the other issue in Rogoff: whether President Trump had the authority to remove the court-appointed U.S. attorney. And they consider whether the court will ever reach the larger—and more interesting—constitutional appointment question.

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.