Unwritten Law

Why are the Little Sisters of the Poor still being dragged into court over the Affordable Care Act’s contraception mandate—years after the Supreme Court ruled in their favor?On this episode of Unwritten Law, Mark Chenoweth and John Vecchione are joined by NCLA Senior Litigation Counsel Andy Morris to discuss a newly filed amicus brief at the U.S. Court of Appeals for the Third Circuit in Pennsylvania & New Jersey v. Trump. The case challenges religious exemptions that protect the Little Sisters, Catholic nuns who object to being forced to provide contraception coverage.The conversation explores how federal agencies imposed the mandate without clear congressional authorization, why Pennsylvania and New Jersey are suing to eliminate long-standing religious exemptions, and how the case exposes serious constitutional problems—including lack of standing, agency overreach, and violations of the nondelegation doctrine.At its core, this episode explains why vague laws and unchecked bureaucratic power threaten religious liberty and the separation of powers—and why courts should put an end to litigation that never should have continued.Unwritten Law examines how unwritten rules, agency actions, and judicial shortcuts quietly reshape the law—often without the consent of the governed.

In this episode of Unwritten Law, Mark Chenoweth and John Vecchione are joined by Andreia Trifoi to discuss NCLA’s constitutional challenge to the City of Marco Island’s use of automatic license plate readers (ALPRs) — a surveillance system that records and stores the movements of every driver entering or leaving the island.Because Marco Island has only three bridges, residents are photographed and tracked multiple times a day, with their location data retained for years and potentially shared with other agencies or private companies. The hosts explain why this dragnet surveillance goes far beyond ordinary police observation and raises serious Fourth Amendment concerns.This episode explores how emerging surveillance technology is testing the limits of constitutional privacy — and why courts must confront these questions before mass tracking becomes the norm.

In this follow-up episode of Unwritten Law, Mark Chenoweth and John Vecchione continue their deep dive into the Supreme Court’s oral argument in Trump v. Slaughter, focusing on key issues that received less attention in Part I — but may prove just as consequential.The conversation explores whether there is any meaningful constitutional distinction between criminal and civil enforcement, and why several justices appeared skeptical of claims that civil enforcement power is somehow “less executive.” The hosts explain why allowing independent agencies like the FTC and SEC to prosecute their own civil cases — outside the Department of Justice — raises serious accountability and separation-of-powers concerns.

Just days after oral argument, Unwritten Law hosts Mark Chenoweth and John Vecchione break down one of the most consequential separation-of-powers cases in decades: Trump v. Slaughter.At stake is Humphrey’s Executor, the 1935 Supreme Court decision that allowed Congress to insulate powerful federal regulators from presidential control. If overturned, the ruling could fundamentally reshape the modern administrative state.Mark and John walk through the justices’ questions, the strengths and weaknesses of the arguments on both sides, and why several members of the Court appear ready to rethink nearly a century of doctrine.This episode offers a clear, candid look at how the Court may redraw the constitutional boundaries of executive power — and what that means for self-government in America.

In this episode, Mark Chenoweth and John Vecchione sit down with NCLA Litigation Counsel Casey Norman to break down a major regulatory win: stopping FERC’s sweeping “Duty of Candor” rule before it ever hit the books. The proposed rule would have allowed the Federal Energy Regulatory Commission to punish any speaker — from corporations to ordinary citizens — for any statement, email, or phone call the agency deemed “false,” “misleading,” or missing “material information,” with no mens rea requirement and no defined limits.Casey walks through why this vague, overbroad rule was a First Amendment disaster waiting to happen; how it risked chilling public debate on energy and environmental policy; and how NCLA’s detailed comments helped persuade FERC to scrap the rule entirely. The team also explores how the proposal fit into a broader pattern of government attempts to police “truth,” and why regulatory speech controls should worry everyone.It’s a rare victory in the world of administrative rulemaking — and a reminder that sometimes the best lawsuit is the one you never have to file.