Unwritten Law

In this episode of Unwritten Law, Mark Chenoweth and John Vecchione are joined by Peggy Little, Senior Litigation Counsel at NCLA, to discuss one of the most consequential cases in the organization’s docket: Davidson, et al. v. Atkins, a constitutional challenge to the SEC’s Consolidated Audit Trail (CAT).
The CAT is a massive nationwide database that collects and stores every stock trade made by every American investor, without suspicion, clear statutory authorization, or congressional appropriation. Peggy explains why this dragnet surveillance raises serious Fourth and Fifth Amendment concerns, threatens the security of Americans’ financial data, and unlawfully shifts billions of dollars in costs onto investors.
The discussion covers:
Why the SEC lacks statutory authority to create and operate the CAT
How mass financial data collection implicates constitutional privacy protections
The dangers of delaying judicial review while unconstitutional conduct continues
Why agencies cannot be allowed to “think about fixing” violations while rights are being infringed

This episode explains why Davidson, et al. v. Atkins is not just about securities regulation, but about the constitutional limits of agency power — and why courts must intervene.

In this episode of Unwritten Law, John Vecchione and Mark Chenoweth unpack the latest chapter in Relentless, Inc. v. Department of Commerce, a case that sits at the crossroads of administrative power, statutory interpretation, and life after Chevron deference.
The conversation focuses on whether federal agencies can require regulated parties — here, commercial fishermen — to pay for government-mandated monitors placed on their boats, even when Congress never clearly authorized those costs. John explains why a Rhode Island district court relied on a so-called “default norm” to uphold the rule, and why that reasoning conflicts with the Supreme Court’s rejection of Chevron in Loper Bright.
Mark and John walk through the Magnuson-Stevens Act, highlighting where Congress explicitly authorized industry-funded observers — and where it did not. They also explore the constitutional stakes: who decides who pays, why funding power belongs to Congress, and what happens when agencies effectively fund themselves through regulation.
The episode offers a clear look at how unelected bureaucrats expand power, why statutory text still matters, and what this case could mean for administrative law after Chevron.

In this episode of Unwritten Law, Mark Chenoweth and John Vecchione are joined by Peggy Little, Senior Litigation Counsel at NCLA, to discuss NCLA’s amicus brief in Media Matters v. Federal Trade Commission, currently before the U.S. Court of Appeals for the D.C. Circuit.
The conversation focuses on the FTC’s use of civil investigative demands (CIDs) and a fundamental constitutional question: must individuals and organizations have access to an independent court before complying with sweeping agency demands? Peggy explains why allowing agencies to issue broad investigative orders without meaningful judicial review threatens First Amendment rights of speech and association.
Drawing on Supreme Court precedents including NAACP v. Alabama, Americans for Prosperity Foundation v. Bonta, Axon Enterprise v. FTC, and SEC v. Jarkesy, the episode examines why constitutional challenges cannot be forced through agency-controlled processes. The hosts also discuss the dangers of agencies “holding the keys to the courthouse,” the structural bias built into self-review, and how repeated investigative demands can be used to pressure or dismantle organizations without ever filing charges.

Chevron deference may be gone—but is the Supreme Court quietly laying the groundwork for something even worse?
In this episode of Unwritten Law, Mark Chenoweth and John Vecchione examine a recent Supreme Court decision that could dramatically reshape administrative law. Drawing on analysis by Will Yeatman, they discuss how the Court’s handling of VanDerStok risks giving agencies a powerful new shield by treating challenges to regulations as “facial” attacks—making them nearly impossible to win.
The conversation dives into why this approach departs from traditional administrative-law principles, how lower courts may use it to avoid meaningful judicial review, and why this decision could become a dangerous tool for future administrations—regardless of political party.
If you care about limits on bureaucratic power, the future of post-Chevron litigation, or the proper role of courts in reviewing agency action, this episode explains why VanDerStok is an issue worth watching closely.

As the nation approaches the 250th anniversary of the Declaration of Independence, the Chief Justice of the United States reflects on America’s founding principles in his annual Year-End Report on the Federal Judiciary. But what does that report really say about the state of the Supreme Court today?
In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione unpack Chief Justice Roberts’s historical reflections, his views on the Declaration of Independence, and what judicial independence truly means in modern constitutional law. They explore whether the Declaration is merely “ancillary” or something closer to law itself—and why that debate matters.
The discussion also turns to a persistent frustration: the Supreme Court’s shrinking docket. With filings down and opinions limited, Mark and John ask whether the Court is failing to address critical legal questions that affect Americans’ daily lives—and what consequences follow when major precedents are left to “fester” in the lower courts.