Unwritten Law

New Civil Liberties Alliance

Unwritten Law is a podcast hosted by Mark Chenoweth and John Vecchione, brought to you by the New Civil Liberties Alliance (NCLA). This show dives deep into the world of unlawful administrative power, exposing how bureaucrats operate outside the bounds of written law through informal guidance, regulatory “dark matter,” and unconstitutional agency overreach.

  1. 5 MAR

    Disparate Impact and the Limits of Agency Power

    In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione welcome Caitlin Moyna, Senior Litigation Counsel at the New Civil Liberties Alliance, to the podcast for the first time. The conversation focuses on the controversial “disparate impact” liability rule in housing law and HUD’s effort to rescind it. The rule allows liability for housing practices that unintentionally affect one group more than another—even when there is no intent to discriminate. Caitlin explains how this doctrine emerged from a series of Supreme Court cases, beginning with Griggs v. Duke Power and later extending into the housing context through Texas Department of Housing and Community Affairs v. Inclusive Communities Project. The discussion explores how disparate impact liability shifted discrimination law away from intentional conduct and toward statistical outcomes. The episode also examines how agency interpretations and judicial deference helped expand this doctrine over time—and why recent Supreme Court decisions curtailing agency deference may put its legal foundations into question. Mark, John, and Caitlin discuss the implications of HUD rescinding the rule, why private lawsuits could still continue under the statute, and what a broader reevaluation of disparate impact liability could mean for housing, employment, lending, and other areas of federal regulation.

    23 min

  2. 3 MAR

    Can Congress Hand EPA the Power to Pick Winners?

    In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by NCLA General Counsel Zhonette Brown to discuss a petition for certiorari asking the U.S. Supreme Court to take up a major separation-of-powers case involving the Environmental Protection Agency. The case, Choice Refrigerants v. EPA, challenges how the agency implemented Congress’s AIM Act, which created a cap-and-trade system to phase down certain refrigerants. According to the petition, Congress provided virtually no guidance on how market allowances should be distributed—leaving EPA with sweeping discretion to decide which companies would keep their market share and which would lose it. Zhonette explains why this case presents a “clean vehicle” for the Supreme Court to revisit the nondelegation doctrine, which holds that Congress cannot hand over its legislative power to executive agencies without providing meaningful direction. The discussion explores the “intelligible principle” test, the D.C. Circuit’s reasoning, and why the Court may finally confront the limits of congressional delegation after nearly a century without striking down a statute on nondelegation grounds. The episode also highlights the real-world stakes for small businesses like Choice Refrigerants, founded by entrepreneur Ken Ponder, whose patented refrigerant products were affected by EPA’s allocation decisions.

    27 min

  3. 26 FEB

    The Supreme Court Slaps Down Presidential Tariff Power

    In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione and NCLA President Mark Chenoweth are joined by Andy Morris to discuss the Supreme Court’s 6–3 decision rejecting the claim that the President has unilateral authority to impose, raise, or lower tariffs under the International Emergency Economic Powers Act (IEEPA). The conversation unpacks Chief Justice Roberts’s majority opinion, which relies on careful textual analysis to reaffirm that tariff authority belongs to Congress—not the Executive. John, Mark, and Andy explain why the statute’s language does not authorize revenue-raising measures, how the Constitution’s prohibition on export taxes reinforces that conclusion, and why decades of practice confirm that “regulating importation” does not mean imposing tariffs. They also examine the dissents, including Justice Kavanaugh’s reliance on prior cases like Algonquin, the role of the Major Questions Doctrine, and why emergency powers do not justify bypassing Congress’s exclusive taxing authority. The episode closes with a broader discussion of separation of powers, the dangers of discretionary tariff regimes, and why this decision represents a major win for constitutional limits on executive power.

    32 min

  4. 24 FEB

    Does SEC Disgorgement Require Investor Harm?

    In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by NCLA Senior Litigation Counsel Kara Rollins to discuss Sripetch v. SEC, a securities law case scheduled to be argued before the U.S. Supreme Court in April. The case asks a critical question: must the Securities and Exchange Commission prove that investors suffered actual financial harm in order to obtain disgorgement in a civil enforcement action? John and Kara explain how recent Supreme Court decisions, including Kokesh and Liu, narrowed the SEC’s disgorgement authority while leaving this issue unresolved.

    17 min

  5. 22 FEB

    The Supreme Court’s Emergency Docket Turns Ten

    In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione mark the ten-year anniversary of what’s often called the Supreme Court’s “emergency docket”—sometimes labeled the “shadow docket”—and examine how it has reshaped constitutional litigation. Mark and John explain what the emergency docket is, how it differs from merits decisions, and why its modern form is often traced to the Supreme Court’s 2016 decision to stay the Obama Administration’s Clean Power Plan. They discuss why emergency relief can be critical to preventing irreversible “fait accompli” outcomes when executive action races ahead of judicial review. The conversation also explores debates sparked by critics of the emergency docket, the confusion it can create for lower courts, and whether decisions issued without full opinions should bind judges below. Along the way, Mark and John reflect on the legacy of Justice Antonin Scalia—whose final vote played a key role in the Clean Power Plan stay—and how his jurisprudence continues to influence debates over judicial power, originalism, and the proper limits of the administrative state.

    26 min

  6. 20 FEB

    Student Loan Pauses, Standing, and Lost Subsidies

    In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Russ Ryan to discuss a recent oral argument before the U.S. Court of Appeals for the Sixth Circuit challenging the federal government’s student loan payment and interest pause. The case, Mackinac Center for Public Policy v. U.S. Department of Education, focuses on the executive branch’s decision—under both the Trump and Biden administrations—to extend a moratorium on student loan payments and interest accrual long after Congress’s limited authorization expired. Russ explains why those unilateral extensions wiped away billions of dollars in interest without statutory authority. The discussion zeroes in on standing: how nonprofit public-interest employers benefit from Congress’s Public Service Loan Forgiveness program, why administrative action that reduces outstanding student debt can unlawfully diminish that congressionally granted subsidy, and how Supreme Court precedent—most notably Clinton v. City of New York—supports the theory that loss of a subsidy is a concrete injury. Mark, John, and Russ also unpack the judges’ questions at oral argument, the Sixth Circuit’s prior rulings, and why this case could clarify when organizations may challenge executive actions that override Congress’s spending decisions.

    26 min

  7. 11 FEB

    The SEC’s Stock Surveillance and the Fourth Amendment

    In this episode of Unwritten Law, Mark Chenoweth and John Vecchione are joined by NCLA Of Counsel Margot Cleveland to discuss one of NCLA’s most consequential ongoing cases: Davidson v. Adkins, a constitutional challenge to the SEC’s Consolidated Audit Trail (CAT). The CAT requires broker-dealers to collect and transmit detailed data on virtually every stock trade in the United States, creating a massive government-accessible database of Americans’ financial activity. Margot explains why recent changes announced by the SEC—such as removing names but retaining identifying numbers—do not cure the Fourth Amendment problem, and why suspicionless, warrantless searches of stock-trading data resemble the general warrants the Constitution was designed to forbid. The episode also examines the SEC’s repeated requests for delays while the program continues to operate, the lack of congressional authorization or appropriation for CAT, related rulings from the Eleventh Circuit, and the broader dangers of mass financial surveillance for privacy, free association, and constitutional limits on agency power.

    24 min

  8. 9 FEB

    Can DOE Regulate Water Use Without Congress?

    In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione discuss John’s recent oral argument at the U.S. Court of Appeals for the Fifth Circuit in Word v. Department of Energy. Bill Word and David Daquin both own a dishwasher and a washing machine that they want to replace. The U.S. Department of Energy has imposed regulations in 2012 and 2024 illegally limiting how much water dishwashers and washing machines can use. The appliances Word and Daquin want to buy use more water than those regulations allow. But under the amended Energy Policy and Conservation Act of 1975, the Department of Energy can only regulate water use in “faucets, showerheads, water closets and urinals”. The conversation also explores a key procedural question: where regulated parties can seek meaningful relief when an agency repeatedly issues unlawful rules, and whether district courts must be able to issue injunctions to stop ultra vires agency action. Along the way, Mark and John reflect on the Fifth Circuit’s prior rulings, post-Loper Bright limits on agency power, and why congressional action—not bureaucratic improvisation—is the proper way to regulate.

    13 min
See All (91)

About

Unwritten Law is a podcast hosted by Mark Chenoweth and John Vecchione, brought to you by the New Civil Liberties Alliance (NCLA). This show dives deep into the world of unlawful administrative power, exposing how bureaucrats operate outside the bounds of written law through informal guidance, regulatory “dark matter,” and unconstitutional agency overreach.

Information

  • Creator
    New Civil Liberties Alliance
  • Years Active
    2025 - 2026
  • Episodes
    91
  • Rating
    Clean
  • Copyright
    © Copyright 2026 New Civil Liberties Alliance
  • Show Website
    Unwritten Law
  • Provider

You Might Also Like