34 episodes

Administrative Static is an irreverent legal affairs podcast that exposes the unlawful side of administrative power. Hosts Mark Chenoweth and John Vecchione will decry federal and state agency abuses, trot out legal arguments, grill expert guests, and bandy about the latest cases and controversies. 

Administrative Static Podcas‪t‬ Administrative Static

    • Government
    • 5.0 • 2 Ratings

Administrative Static is an irreverent legal affairs podcast that exposes the unlawful side of administrative power. Hosts Mark Chenoweth and John Vecchione will decry federal and state agency abuses, trot out legal arguments, grill expert guests, and bandy about the latest cases and controversies. 

    Trump's Taxes in Play; Milice v. CPSC

    Trump's Taxes in Play; Milice v. CPSC

    Trump's Taxes in Play

    The Supreme Court on Monday (02/22) declined to step in to halt the turnover of former President Trump's tax records to a New York state prosecutor. Vec and Mark discuss the latest updates in the prosecution of former President Trump in New York.

     

    Milice v. CPSC

    Later in the episode, Mark and Vec discuss Lisa Milice's case against the U.S. Consumer Product Safety Commission and its “secret” rules.

     

    NCLA is helping Milice, a new mother, challenge CPSC’s practice of keeping consumer product safety standards hidden behind a private paywall.

     

    Milice, a potential infant bath seat purchaser, asked CPSC to let her see a copy of its Safety Standard for Infant Bath Seats. The Commission responded that it does not allow people to see the Rule and directed her to buy a copy from ASTM International, a private organization that specializes in creating safety standards. ASTM charges $56.00 for a copy of the law—about twice the cost of an infant bath seat. According to CPSC, any person interested in viewing one of the Commission’s safety standards that has been incorporated by reference must pay the purchase price ASTM sets—a deeply arbitrary and capricious policy that allows a private organization to hold a monopoly over access to a binding legal standard.

     

    NCLA argues that CPSC (or any other government agency, for that matter) cannot charge for access to the law because citizens are the government and the authors of the law—and the law in its entirety belongs to the citizenry. CPSC’s failure to make a copy of the Rule freely accessible to the public violated the requirement in the Commission’s organic statute that CPSC must publish the text of its rules. The Commission’s scheme also violates the Freedom of Information Act and the Administrative Procedure Act’s guarantees that materials incorporated by reference into agency rules be reasonably available to the public.

     

    A video released this past week reveals Milice's fight to see the law. Watch it here: https://youtu.be/ToMiloTRIrU

     

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    • 25 min
    Rush Limbaugh; Trump's DOJ v. Biden's DOJ

    Rush Limbaugh; Trump's DOJ v. Biden's DOJ

    Rush Limbaugh

    Vec and Mark reflect on Rush Limbaugh’s influence. After announcing last year that he had stage four lung cancer, Rush Hudson Limbaugh III died at age 70. Limbaugh was an American radio personality, conservative political commentator, author, and television show host. He was best known as the host of The Rush Limbaugh Show. 

     

    Trump's DOJ v. Biden's DOJ

    Later in the episode, Vec and Mark discuss cases the DOJ is dropping as a result of the change in administration.

     

    Earlier this month the U.S. Department of Justice has dropped its lawsuit brought by the Trump administration against Yale University. The DOJ sued Yale in October 2020 for race and national origin discrimination, alleging that most Asian American and white applicants have one-eighth to one-fourth the likelihood of admission as African American applicants with comparable academic credentials.

    See omnystudio.com/listener for privacy information.

    • 25 min
    Gubbels v. USDA; Supreme Court Shadow Docket

    Gubbels v. USDA; Supreme Court Shadow Docket

    Gubbels v. USDA 

    In this episode, Mark examines the case Gubbles v. USDA from start to finish. 

    Kevin Gubbels and Insure My Honey, Inc. v. U.S. Department of Agriculture and U.S. Risk Management Agency, was filed against the U.S. Department of Agriculture (USDA), the U.S. Risk Management Agency (RMA), and the respective heads of those entities. Gubbels was contesting that those agencies’ efforts to suspend and debar his participation in the federal crop insurance program without a hearing.

    Read more here: https://nclalegal.org/kevin-gubbels-and-insure-my-honey-inc-v-u-s-department-of-agriculture-and-u-s-risk-management-agency/

    Supreme Court Shadow Docket 

    Later in the episode, Vec and Mark exchange views about the Supreme Court’s shadow docket and recent controversy around it.

    The U.S. Supreme Court's shadow docket refers to emergency orders and summary decisions that are outside the high court’s main docket of argued cases and decisions. 

    See omnystudio.com/listener for privacy information.

    • 25 min
    Constitutionality of ALJs; Tax Season

    Constitutionality of ALJs; Tax Season

    Constitutionality of ALJs

    NCLA filed an amicus brief in Fleming, et al. v. USDA, citing the U.S. Supreme Court’s 2018 decision in Lucia v. SEC and taking issue with the USDA's use of Administrative Law Judges (“ALJs”) who violate Article II and the separation of powers. No statute, law, or court precedent compelled the decision. Longstanding precedent requires courts to fulfill their “unflagging” duty to hear such constitutional challenges which protect Americans from this merciless and illogical flex of government power. 

    On February 16th, the U.S. Court of Appeals for the District of Columbia filed a disappointing ruling —leaving Mr. Fleming in a legal limbo where his constitutional separation-of-powers claim cannot be heard by a real Article III judge. The Fleming case contested the USDA's use of ALJs in a way that violates Article II of the U.S. Constitution. In this episode, Mark discusses the D.C. Circuit's decision in Fleming, et al. v. USDA. 

    Read more here: https://nclalegal.org/amicus-brief-fleming-et-al-v-united-states-department-of-agriculture/

     

    Tax Season

    Later in the episode, Vec describes Ali Taha's battle against the IRS and the problems with Brand X deference by the Courts.

    During Fiscal Year 2019 the Internal Revenue Service (IRS) processed approximately 253 million tax returns and other forms. But if the case of NCLA client Ali M. Taha is any indication, there is no guarantee that the IRS will acknowledge receipt of your tax return or tax-refund claim, and you might just end up in court trying to get your money back. 

    Mr. Mohamad E. Taha and Ms. Sanaa M. Yassin, filed a claim seeking refund of taxes overpaid in 2002, 2003, and 2004, but the IRS asserts it never received the filing. The CFC conducted a trial on the question of whether Mr. Ali Taha had mailed the tax-refund claim to IRS. The court concluded that Mr. Taha’s testimony was credible and that he had indeed mailed the tax-refund claim. However, IRS argued that an amended 2011 regulation prohibits witness testimony on the timely-mailing question and instead only recognizes certified or registered mail receipts as adequate proof of mailing. The regulation conflicts with the applicable statute, which several courts have read to allow witness testimony on this very question. Moreover, the regulation contradicts the centuries-old common law “mailbox rule” that allows such testimony. A canon of statutory construction called the common law presumption canon forbids construing statutory silence to override the common law.

    Read more here: https://nclalegal.org/ali-m-taha-on-behalf-of-his-deceased-brother-and-his-brothers-wife-v-united-states/

    See omnystudio.com/listener for privacy information.

    • 25 min
    Biden Cancels Trump Opioid Plan; USDA Violated FACA

    Biden Cancels Trump Opioid Plan; USDA Violated FACA

    Biden Cancels Trump Opioid Plan

    The Biden administration said that it is canceling a last-minute plan by the Trump administration to let more physicians prescribe an opioid-treatment drug, despite exhortations to keep it from lawmakers and physician groups. Vec discusses this change in policy from the new administration.

    USDA Violated FACA

    Later in the episode, Mark talks about USDA’s violation of the Federal Advisory Committee Act and why it matters for regulations of Radio Frequency Identification Devices (RFID) eartags.

    The U.S. Department of Agriculture (USDA) and the Animal and Plant Health Inspection Service (APHIS) have violated the Federal Advisory Committee Act (FACA) and the Administrative Procedure Act (APA). In their attempt to unlawfully mandate RFID eartags on livestock destined for market, USDA and APHIS set up two advisory committees to assist their RFID efforts, the “Cattle Traceability Working Group” (CTWG) and the “Producer Traceability Council” (PTC).

    An opening brief filed by the New Civil Liberties Alliance in the U.S. District Court for the District of Wyoming argues that USDA and its subagency, APHIS, failed to comply with FACA’s statutory requirements in establishing and using the two advisory committees to gather information necessary to implement RFID eartags.  

    NCLA represents the Ranchers Cattlemen Action Legal Fund United Stockgrowers of America (R-CALF USA) and four ranchers: Tracy and Donna Hunt from Wyoming, and Kenny and Roxy Fox from South Dakota, who filed a lawsuit against these agency defendants challenging their illegal April 2019 “guidance” as violating the 2013 Traceability and Identification Rule by attempting to force cattle producers to use RFID eartags in lieu of all other forms of approved identification under the earlier rule.

    NCLA’s brief criticizes the Defendants’ decision to establish and utilize “advisory committees” without complying with FACA’s procedural requirements, as well as their decision to exclude from participation anyone who opposed the RFID requirements. Defendants’ mandate, issued in violation of the 2013 Final Rule, was designed to prohibit cattle producers from using any animal identification options that up to now had been perfectly acceptable, including tattoos, backtags, permanent metal eartags, brands, and group/lot identification numbers.

    Defendants have taken the position that they neither “established” nor “utilized” the CTWG and PTC advisory committees within the meaning of FACA. However, their Administrative Record and documents obtained through a FOIA request prove otherwise. Defendants have conceded that they did not follow FACA’s procedural requirements—mostly because they wrongly assumed that they should not have to. Again, however, their own documents demonstrate that FACA applies in this case: (1) the agency urged the formation of CTWG; (2) numerous APHIS employees actively participated in CTWG’s and PTC’s meetings and calls; (3) CTWG’s fixed membership included APHIS officials; (4) CTWG and PTC—and their various subgroups—met regularly and made a series of recommendations to APHIS regarding the implementation of the RFID technology.

    NCLA is asking the court to recognize the CTWG and PTC as federal advisory committees set up by USDA. To penalize USDA for not following FACA’s public meeting and balanced membership requirements, NCLA is further asking the court to prohibit Defendants from using any of the work product or recommendations made by either CTWG or PTC.

    Read more here: https://nclalegal.org/r-calf-usa-v-united-states-department-of-agriculture/

    See omnystudio.com/listener for privacy information.

    • 25 min
    SCOTUS defends 1st Amendment in CA; Qualified Immunity in Walsh v. Hodge, et al.

    SCOTUS defends 1st Amendment in CA; Qualified Immunity in Walsh v. Hodge, et al.

    SCOTUS defends 1st Amendment in CA

    Vec explains the U.S. Supreme Court’s injunction against California Governor Gavin Newsom over restrictions on places of worship. In March of 2020, Governor Newsom issued edicts that placed a ban on indoor religious services.

    On February 5th, the Supreme Court ruled on two cases brought by two church groups and their pastors, Harvest Rock Church and Harvest International Ministry, and South Bay United Pentecostal Church. The churches' request for an injunction halting the in-person worship ban was partially granted, pending appeal.

    The Justices said for now California can’t continue with a ban on indoor church services, but it can limit attendance to 25% of a building’s capacity and restrict singing and chanting inside.

    Qualified Immunity in Walsh v. Hodge et al.

    Later in the episode, Mark discusses the qualified immunity issues involved in NCLA’s new Title IX cert petition in Walsh v. Hodge, et al.

    NCLA represents Dr. Walsh who was fired after a sham Title IX university hearing on allegations that he sexually harassed a student. He was not permitted to introduce evidence to prove his innocence or have any real-time opportunity to confront and cross-examine his accuser to allow the Committee to evaluate her—and his—credibility. Instead, the University hired an outside investigator to look into the complaint and testify before the Committee. In response, Dr. Walsh filed a federal suit against the university officials involved in his disciplinary hearing.

    See omnystudio.com/listener for privacy information.

    • 25 min

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Great Show!

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