Last week I had a post titled “A Chink In The Armor Of The Progressive Administrative State.” The post discussed a recent case out of the Fifth Circuit Court of Appeals, Jarkesy v. SEC, where the Fifth Circuit ruled that an SEC prosecution of Mr. Jarkesy before its own Administrative Law Judge violated the Constitution for, among other things, denying Mr. Jarkesy his right to a jury trial, and giving the SEC unfettered discretion to decide which of its prosecutions can avoid federal District Court jurisdiction.
In the Jarkesy case, a relatively new organization called the New Civil Liberties Alliance played a significant role as amicus. Founded only five years ago (2017) by Philip Hamburger, a constitutional law professor at Columbia Law School, the NCLA has quickly made a big mark for itself in the field of constitutional litigation. Hamburger was the author of the 2014 book Is Administrative Law Unlawful?, which, although perhaps addressed to a somewhat narrow audience of nerds such as myself, nevertheless has created shock waves in the complacent world of federal bureaucrats who had for decades engaged in rampant unconstitutional practices without effective challenge.
The NCLA specifically focuses its efforts on areas where the administrative state has somehow until now managed to insulate the most blatantly unconstitutional practices from judicial scrutiny. If you start looking at these things, it is truly amazing what the bureaucracies have been able to get away with for years and often decades. The NCLA does not confine itself to filing amicus briefs in important cases, but also in many instances acts itself as lead or co-counsel to many of the parties challenging unconstitutional administrative actions. For today, I’ll highlight just three recent matters where the NCLA itself acts as counsel to the non-government parties:
Cochran v. SEC. As in Jarkesy, Ms. Cochran is being prosecuted by the SEC before its own Administrative Law Judge. Why does any defendant tolerate being subject to such an obviously unconstitutional procedure? It turns out that, under a provision of the Securities Exchange Act of 1934 and the doctrine of “administrative finality,” multiple of the courts of appeal have held that a defendant prosecuted by the SEC in such a proceeding cannot go to court to enjoin the proceeding, but rather must go through the proceeding to the end, and suffer the inevitable loss in this rigged forum, before he can have access to a court. The NCLA took on Ms. Cochran’s case, and took it to the Fifth Circuit Court of Appeals, which had not previously ruled on the issue of whether a defendant in an SEC Administrative proceeding could challenge that proceeding in court before going all the way through to the end. In an en banc decision in December 2021, the Fifth Circuit ruled that Ms. Cochran has the right to challenge the constitutionality of the administrative procedure before undergoing the full administrative adjudication. In light of the split among the circuits, the Supreme Court granted certiorari in Ms. Cochran’s case on May 16.
FDRLST Media v. National Labor Relations Board. FDRLST Media is the entity that publishes the Federalist website, a right-leaning site that is home to some excellent reporting on issues that have recently including such things as the Hunter Biden laptop and the Fairfax County parents’ protests against their school board. In June 2019, after media reports that reporters at left-leaning site Vox had walked off the job during union contract negotiations, Ben Domenech, executive officer of the Federalist, tweeted “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” A member of the public with no relationship to the Federalist promptly filed an “unfair labor practices” complaint with the NLRB — and the NLRB staff in response initiated complaint against Domenech, again prosecuted before its own ALJ. It appears that the NLRB staff thinks its mission includes silencing conservative speech critical of unionization, particularly anything that might involve humor. In November 2020 the ALJ ruled that Domenech’s tweet constituted an unfair labor practice under the National Labor Relations Act, because it was “an obvious threat” to the employees. NCLA represented FDRLST Media and Domenech in taking the case to the Third Circuit Court of Appeals. On May 20 the court ruled for FDRLST and Domenech. The court held that the complainant was not “aggrieved” within the meaning of the NLRA, and also that the best reading of Domenech’s tweet was that it was humor rather than a “threat.”
Romeril v. SEC. In 2003 Mr. Romeril settled a case with the SEC. The SEC requires, as part of any settlement with the Commission, that the defendant agree to a permanent lifetime ban on
“ever even ‘indirectly’ leaving the ‘impression’ that ‘any allegation’ in the Commission’s original complaint is ‘without factual basis.’”
Some sixteen years after agreeing to those conditions, Mr. Romeril now wants to speak about the circumstances of the case where the SEC pursued him. He took his claim to the Southern District of New York, and then to the Second Circuit, where he lost both times. The NCLA now represents him in a petition for certiorari to the Supreme Court. The final briefs on that petition were just filed on Friday May 27. As NCLA points out in the brief in support of its cert. petition,
“As a result of the SEC’s gag policy, Mr. Romeril has been unable for over 18 years fully to discuss his case publicly, a sanction that, as a matter of well- established First Amendment law, could not have been imposed on someone convicted of treason or of murdering the highest-ranking federal officials.”
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