Unwritten Law

Mark Chenoweth & John Vecchione

Every day, unelected federal agencies make decisions that affect your job, your business, your speech, your property, and your constitutional rights—often without Congress ever voting on them. From the rules that govern small businesses to the regulations that shape everyday life, the modern administrative state reaches further than most Americans realize. On Unwritten Law, constitutional lawyers Mark Chenoweth and John Vecchione break down the biggest legal battles involving federal agencies, government overreach, and the Constitution. Each episode explores real cases challenging the expanding power of the administrative state, explaining how these disputes affect ordinary Americans, businesses, and the future of limited government. Whether the topic is the Supreme Court, free speech, property rights, due process, jury trials, executive power, or the separation of powers, Unwritten Law explains the legal issues behind today's biggest constitutional debates in clear, accessible language. You'll hear directly from the attorneys litigating landmark cases, as well as clients whose lives and livelihoods have been changed by unlawful government action. Produced by the New Civil Liberties Alliance (NCLA), Unwritten Law takes listeners behind the headlines to explain how federal agencies exercise regulatory power, how constitutional challenges move through the courts, and why these cases matter—even if you've never stepped inside a courtroom. If you've ever wondered who really writes the rules that govern your life, why unelected bureaucrats hold so much authority, or how the Constitution protects individual liberty, Unwritten Law will give you the context, the legal insight, and the real-world stories behind today's most important fights for civil liberties. Whether you're a lawyer, business owner, public servant, student, or simply someone who wants to better understand how government power affects everyday life, Unwritten Law gives you the legal insight behind the headlines—and the constitutional principles that protect individual liberty. Subscribe each week for conversations about Supreme Court litigation, constitutional law, the administrative state, federal agencies, government accountability, civil liberties, free speech, property rights, due process, separation of powers, regulatory power, and the legal battles shaping the future of American government.

  1. 6 days ago

    When Regulatory Shortcuts Become the Rule

    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.

  2. 25 Aug

    Should Federal Judges Get to Pick Federal Prosecutors?

    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.

  3. 17 Aug

    BASE Jumping, Bureaucrats, and Criminal Law

    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.

  4. 14 Aug

    Education Is Speech: NCLA's Groundbreaking Case for Parental Choice

    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

  5. 13 Aug

    “Make Congress Great Again”? The Problem Isn’t the Supreme Court

    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.

  6. 12 Aug

    Can a Federal Agency Be Your Prosecutor and Judge?

    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 Russ Ryan to discuss Department of Labor v. Sun Valley Orchards, an important case headed to the Supreme Court. Sun Valley Orchards is a family farm that employs domestic workers as well as foreign workers through the H-2A visa program. After the Department of Labor accused the farm of violating requirements governing its workers, the agency pursued the case through its own administrative adjudication process and ultimately imposed roughly half a million dollars in penalties. But should an executive agency be able to adjudicate a case involving private rights and impose substantial monetary penalties—or does the Constitution require that kind of dispute to be heard by an independent Article III court? Russ discusses NCLA's amicus brief, filed with the Buckeye Institute and Americans for Prosperity Foundation, arguing that judicial power belongs exclusively to the judicial branch. The conversation also explores the distinction between so-called "public" and "private" rights, the Supreme Court's decision in SEC v. Jarkesy, and why the Court may finally need to confront its longstanding Atlas Roofing precedent. With Sun Valley Orchards set to be argued before the Supreme Court, the case could provide important answers about the constitutional limits of administrative adjudication.

  7. 1 Aug

    Can the Government Force You to Join a Private Organization?

    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 Andy Morris to discuss National Association of Wholesaler-Distributors v. Ryan, NCLA's newly filed challenge to Colorado's Producer Responsibility Program for recycling. The lawsuit isn't about opposing recycling. Instead, it challenges Colorado's decision to replace local recycling systems with a statewide program administered by a private organization—the Circular Action Alliance (CAA)—that businesses must join in order to sell certain products in the state. Andy explains why NCLA argues the law unlawfully delegates governmental authority to a private entity that can set fees, establish rules, and impose significant consequences on businesses without meaningful public accountability. The discussion also explores the law's First Amendment implications, due process concerns, the Dormant Commerce Clause, and a provision that prohibits businesses from itemizing these recycling fees on customer receipts. Mark, John, and Andy examine why distributors across the country may bear the costs of Colorado's program and what the lawsuit could mean for the constitutional limits on delegating government power to private organizations.

  8. 31 Jul

    Can Government Disarm a Synagogue?

    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 newly filed lawsuit challenging Montgomery County, Maryland's ban on firearms in places of worship and within 100 yards of numerous public gathering places. The case, Silver Spring Jewish Center v. Montgomery County, was filed just days after the ordinance took effect. NCLA argues that the law violates the Second Amendment by making it nearly impossible for law-abiding citizens to exercise their right to bear arms while also interfering with the synagogue's ability to protect its congregation. Jacob explains why the lawsuit also raises significant First Amendment concerns. The Silver Spring Jewish Center believes that members of its congregation should provide security during worship, consistent with its religious beliefs and practices. NCLA argues that the county's ordinance unlawfully burdens both the free exercise of religion and the autonomy of religious institutions. The discussion also examines the Supreme Court's recent decision in Wolford v. Lopez, the meaning of "sensitive places" under the Second Amendment, and why NCLA believes Montgomery County has gone far beyond the constitutional limits recognized by the Court.

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About

Every day, unelected federal agencies make decisions that affect your job, your business, your speech, your property, and your constitutional rights—often without Congress ever voting on them. From the rules that govern small businesses to the regulations that shape everyday life, the modern administrative state reaches further than most Americans realize. On Unwritten Law, constitutional lawyers Mark Chenoweth and John Vecchione break down the biggest legal battles involving federal agencies, government overreach, and the Constitution. Each episode explores real cases challenging the expanding power of the administrative state, explaining how these disputes affect ordinary Americans, businesses, and the future of limited government. Whether the topic is the Supreme Court, free speech, property rights, due process, jury trials, executive power, or the separation of powers, Unwritten Law explains the legal issues behind today's biggest constitutional debates in clear, accessible language. You'll hear directly from the attorneys litigating landmark cases, as well as clients whose lives and livelihoods have been changed by unlawful government action. Produced by the New Civil Liberties Alliance (NCLA), Unwritten Law takes listeners behind the headlines to explain how federal agencies exercise regulatory power, how constitutional challenges move through the courts, and why these cases matter—even if you've never stepped inside a courtroom. If you've ever wondered who really writes the rules that govern your life, why unelected bureaucrats hold so much authority, or how the Constitution protects individual liberty, Unwritten Law will give you the context, the legal insight, and the real-world stories behind today's most important fights for civil liberties. Whether you're a lawyer, business owner, public servant, student, or simply someone who wants to better understand how government power affects everyday life, Unwritten Law gives you the legal insight behind the headlines—and the constitutional principles that protect individual liberty. Subscribe each week for conversations about Supreme Court litigation, constitutional law, the administrative state, federal agencies, government accountability, civil liberties, free speech, property rights, due process, separation of powers, regulatory power, and the legal battles shaping the future of American government.

Information

  • Creator
    Mark Chenoweth & John Vecchione
  • Years Active
    2025 - 2026
  • Episodes
    135
  • Rating
    Clean
  • Copyright
    © Copyright 2026 Mark Chenoweth & John Vecchione
  • Show Website
    Unwritten Law
  • Provider

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