Unwritten Law

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.

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.

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.

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.

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.