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    Government

    Unwritten Law

    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.

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    Copyright: © Copyright 2026 Mark Chenoweth & John Vecchione

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    Latest Episodes:
    The Massachusetts Phone Spyware Case Apr 04, 2026
    Show notes

    Did the government install tracking software on people’s phones without permission?

    In this episode of Unwritten Law, Mark Chenoweth and John Vecchione are joined by NCLA Senior Litigation Counsel Peggy Little to discuss Wright v. Goldstein, a case challenging Massachusetts’ use of COVID contact-tracing technology that was allegedly installed automatically on Android phones without users’ knowledge or consent.

    The lawsuit argued that the program violated the Fourth Amendment, the Fifth Amendment, and computer intrusion laws by forcing software onto private phones and collecting sensitive data, including location and health information. The case resulted in a settlement requiring the state to delete the data and agree not to use similar technology for five years.

    This episode explains the case, the constitutional issues, and why the settlement could have nationwide implications for digital privacy and government surveillance.


    The Inside Story of Murthy v. Missouri: How the Government Pressured Social Media Mar 27, 2026
    Show notes

    In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione and NCLA General Counsel Zhonette Brown discuss their work on Murthy v. Missouri, one of the most significant First Amendment cases in recent years.

    They explain how the case began, the discovery battles that revealed government “back-channel” communications with social media companies, the preliminary injunction, the Supreme Court’s standing decision, and the consent decree that followed. They also discuss what the government agreed to in the settlement and what it could mean for free speech and government involvement with online platforms in the future.

    This conversation offers a behind-the-scenes look at how the case unfolded over several years—and why its outcome could shape First Amendment law in the years ahead.


    Judge Newman and the Right to a Day in Court Mar 25, 2026
    Show notes

    In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by NCLA Litigation Counsel Andy Morris to discuss Newman v. Moore, a case asking the U.S. Supreme Court to decide whether a federal judge can be effectively removed from hearing cases without meaningful judicial review.

    Judge Pauline Newman of the U.S. Court of Appeals for the Federal Circuit has been barred from hearing new cases for years under the Judicial Conduct and Disability Act—despite never being impeached and despite medical evaluations finding her fit to serve. The courts so far have refused to review the merits of her case, citing precedent that treats these actions as internal court administration.

    The petition asks the Supreme Court to decide whether courts must be able to review actions that go beyond temporary administrative measures and effectively remove an Article III judge from the bench. The case raises major constitutional questions about judicial independence, separation of powers, and whether “court administration” can be used in a way that avoids judicial review altogether.

    Mark, John, and Andy explain the legal issues, the procedural hurdles, and why the case is about more than one judge—it’s about whether there are limits on internal judicial power and whether federal courts must be open to hear constitutional claims.


    The First Amendment vs. the SEC Gag Rule Mar 23, 2026
    Show notes

    In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Senior Litigation Counsel Peggy Little to discuss Powell v. SEC, case that NCLA is asking the U.S. Supreme Court to review the SEC’s long-standing “gag rule.”

    The rule prohibits individuals who settle with the SEC from ever publicly denying the agency’s allegations—even if they believe those allegations are false. Peggy explains why the case presents a major First Amendment question involving prior restraint, viewpoint discrimination, and unconstitutional conditions.

    The conversation also explores the real-world consequences of the rule: how it silences defendants, prevents journalists from reporting both sides of enforcement actions, distorts market information, and allows agencies to expand their power through settlements that most people cannot afford to fight.

    The episode discusses key Supreme Court precedents, the Ninth Circuit’s ruling, and why this case could have major implications not just for the SEC, but for government settlement practices across the administrative state.


    Geofencing, Google Data, and the Fourth Amendment Mar 17, 2026
    Show notes

    In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by NCLA Staff Attorney Andreia Trifoi to discuss a major Fourth Amendment case before the U.S. Supreme Court involving the use of geofence warrants.

    Geofence warrants allow law enforcement to obtain location data from companies like Google identifying every device within a specific area during a defined period of time—potentially sweeping in dozens or even hundreds of people with no connection to any crime. Andreia explains how these warrants work, why they often capture innocent bystanders, and how they were used in a bank robbery investigation in Virginia.

    The conversation focuses on the constitutional question at the heart of the case: whether geofence warrants are modern-day general warrants, the very abuse that helped inspire the Fourth Amendment. The discussion also explores how the Supreme Court’s decision in Carpenter v. United States applies to modern location tracking, the challenges courts face when adapting older doctrines to new technology, and the growing tension between privacy rights and expansive digital surveillance.

    John and Andreia also examine the fractured opinions in the Fourth Circuit, the role of the good-faith exception, and why this case could shape the future of Fourth Amendment protections in the digital age.


    Disparate Impact and the Limits of Agency Power Mar 05, 2026
    Show notes

    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.


    Can Congress Hand EPA the Power to Pick Winners? Mar 03, 2026
    Show notes

    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.


    The Supreme Court Slaps Down Presidential Tariff Power Feb 26, 2026
    Show notes

    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.


    Does SEC Disgorgement Require Investor Harm? Feb 24, 2026
    Show notes

    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.


    The Supreme Court’s Emergency Docket Turns Ten Feb 22, 2026
    Show notes

    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.


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