Unwritten Law

Can government officials effectively increase someone's prison sentence through guidance that never went through the same approval process as the law itself?
That's the issue at the heart of Beaird v. United States, a case recently argued before the U.S. Supreme Court.
Federal judges use sentencing guidelines to determine the appropriate punishment for criminal offenses. But under a legal doctrine known as Stinson deference, judges must also defer to the Sentencing Commission's commentary interpreting those guidelines—even though that commentary does not necessarily undergo public review or the same congressional oversight as the guidelines themselves.
And those interpretations can mean more time behind bars.
On this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione welcome Senior Litigation Counsel Kara Rollins to discuss the Supreme Court's oral arguments and NCLA's amicus brief opposing Stinson deference.
They explore why the Justices appeared more divided than expected, how sentencing commentary can affect prison terms, and whether the Court's eventual decision could weaken the principles established in Loper Bright, which overturned Chevron deference.
When someone's freedom is on the line, should judges independently interpret the law—or defer to an unelected commission's commentary?

A longtime Washington lobbyist raises concerns with a federal agency, takes those concerns to the White House, and nearly a year later finds himself banned from the agency's offices.
The Consumer Product Safety Commission (CPSC) labeled Edward Krenik a “credible threat” to agency personnel and operations, but according to NCLA's lawsuit, never explained what he supposedly did to deserve the ban or gave him an opportunity to defend himself.
On this episode of Unwritten Law, NCLA's John Vecchione and Mark Chenoweth welcome Senior Litigation Counsel Kara Rollins to discuss Krenik v. Feldman, NCLA's new lawsuit challenging the agency's actions.
They examine Krenik's First Amendment rights to free speech and to petition the government, the possibility of retaliation for his advocacy, and the serious consequences the ban has had for his livelihood.
Can a federal agency shut someone out simply because it doesn't like what he has to say?

Can the president fire a federal prosecutor appointed by judges?
That's the constitutional question at the center of Trump v. Rogoff, a dispute now before the U.S. Court of Appeals for the Ninth Circuit.
After federal judges appointed Roger Rogoff as U.S. Attorney for the Western District of Washington, President Trump fired him less than an hour later. Rogoff sued, arguing that the president lacked the authority to remove a court-appointed prosecutor. A district court granted a preliminary injunction in Rogoff's favor, but the Ninth Circuit stayed that order while the appeal proceeds.
On this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione welcome Senior Litigation Counsel Jacob Huebert to discuss NCLA's newly filed amicus brief.
NCLA argues that the president has the constitutional authority to remove U.S. attorneys, regardless of who appointed them. The brief also raises a broader constitutional concern: whether federal judges should be appointing executive-branch prosecutors in the first place.
Mark, John, and Jacob examine the Supreme Court's recent Trump v. Slaughter decision, the separation of powers, the role of the Senate in confirming federal prosecutors, and why this dispute could have implications far beyond Washington State.

Can the government deny you a jury trial—and then refuse to let you challenge that denial in federal court?
NCLA is asking the Supreme Court to hear Smith v. SEC, a case challenging the constitutional limits of administrative adjudication and the procedural barriers that can prevent Americans from asserting their rights.
On 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 the newly filed Supreme Court cert petition.
NCLA client Eric Smith was sanctioned through a FINRA disciplinary proceeding without a jury or an Article III judge. The SEC subsequently affirmed the sanctions after years of delay.
When Smith sought review in the Sixth Circuit, NCLA argued that the proceedings violated constitutional protections recognized by the Supreme Court in SEC v. Jarkesy. But the appeals court declined to consider the constitutional challenge because Smith had not first presented it to the SEC.
NCLA is asking the Supreme Court to resolve disagreements among federal appeals courts over whether Americans must raise structural constitutional objections before administrative agencies—and whether they can be excused from doing so when the agency has already made clear that the argument would be futile.
Mark, John, and Russ explain why this dispute matters far beyond Eric Smith, why administrative agencies should not be the gatekeepers of constitutional challenges to their own proceedings, and what happens next as NCLA asks the Justices to hear the case.

What happens when a federal investigator secretly obtains a U.S. senator's phone records—and prevents her from challenging the search?
NCLA has filed a lawsuit on behalf of Senator Marsha Blackburn against former Special Counsel Jack Smith, challenging his acquisition of her telephone records during the Arctic Frost investigation.
On this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by NCLA attorney Caitlin Moyna to discuss the lawsuit, the constitutional protections at stake, and the extraordinary circumstances surrounding the subpoenas.
According to NCLA's complaint, Smith sought telephone records belonging to members of Congress, identifying the targets by their phone numbers rather than their names. His team also obtained nondisclosure orders preventing telephone providers from alerting anyone about the subpoenas. NCLA alleges that investigators failed to tell the court that the records belonged to sitting members of Congress.
The lawsuit argues that these actions violated the Constitution's Speech or Debate Clause, which protects legislative independence from executive interference, as well as the Fourth Amendment. NCLA also challenges the constitutionality of Smith's appointment as Special Counsel.
John and Caitlin discuss why these protections matter, what newly disclosed documents suggest about the government's awareness of congressional privileges, and why Senator Blackburn is seeking accountability rather than a large monetary award.
They also explain an unusual development: all four district judges in the Middle District of Tennessee have recused themselves from the lawsuit.
At stake is a fundamental question about separation of powers: Can executive-branch investigators circumvent constitutional protections designed to safeguard Congress from government interference?