New Civil Liberties Alliance

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AMICUS CURIAE BRIEF OF THE

NEW CIVIL LIBERTIES ALLIANCE IN

SUPPORT OF PETITIONERS

December 20, 2021

Philip Hamburger

Mark Chenoweth

Brian Rosner

(Counsel of Record)

Richard Samp

New Civil Liberties Alliance

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

Brian.Rosner@NCLA.legal

Counsel for Amicus Curiae

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New Civil Liberties Alliance

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/s/ Matthew D. Hardin. Matthew D. Hardin, VSB #87482. Hardin Law Office. 1725 I Street NW, Suite 300. Washington, DC 20006. Telephone: 202-802-1948. Email ...Read more

hardinlawpllc.com

https://hardinlawpllc.com

Hardin Law, PLLC - Fighting Government Overreach

The Hardin Law Office handles select civil litigation for both plaintiffs and defendants. Our firm's plaintiff-side civil litigation practice has a special emphasis on suits against the government for violations of statutory or Constitutional rights, and suits involving consumers whose rights have been

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https://**wallstreetonparade.com/2022/06**/the-glue-that-connects-jeffrey-clark-john-eastman-ginni-thomas-and-the-guy-who-was-air-dropped-into-the-doj-is-charles-kochs-money/

in September 1999 the U.S. Department of Justice filed racketeering charges against the major tobacco companies and two of their front groups. The court filings in that case carefully pieced together a half century of conspiratorial conduct and lies that gravely harmed the health of the American people, while lining the pockets of the tobacco industry, its lawyers and its paid shills.

The January 6 Select House Committee has that same, once-in-a-lifetime power in its hands. But that window of opportunity will close soon. The January 6 Committee can connect all the dots of the attempted coup leading to the doorstep of Charles Koch and expose his four decades of establishing front groups to shill for the fossil fuels industry and anti-climate change groups, or it can present a false and narrow view that this was all about the ego and narcissism of Donald Trump.

Charles Koch is the Chairman and CEO of one of the largest private companies in the world, Koch Industries, a fossil fuels and chemicals conglomerate that has been a serial polluter of the air and water for decades. According to Forbes, Koch has a net worth of $59.8 billion, making him the 17th richest man in the world. Charles Koch, and his late brother, David, functioned as backroom party bosses, behind the veil of a sprawling network of tax-exempt front groups, for 40 years.

Wall Street On Paradehas already produced the evidence tying the groups involved in the planning of the January 6 event to Charles Koch. See our report: The Money Trail to the Siege at the Capitol Leads to Charles Koch and Koch Industries.

We have already written about how the Trump administration was staffed up with Koch-related people and took its marching orders from a Koch-related entity, Freedom Partners.

There is also documented evidence that the Koch network engaged in a multi-faceted strategy to discourage progressives and liberals from turning out in the 2016 presidential election, thus tipping the victory to Trump. Not only did the Koch network fund Americans for Prosperity and Freedom Partners Action Fund ads portraying Democrats as tax and spend bureaucrats but the Koch-controlled i360 voter database and voter-targeting operations may have demoralized the progressive base from turning out while those same operations spurred Republicans to the polls.

And, today, we will show how key collaborators in the attempted coup on January 6 – Jeffrey Clark, John Eastman, Ginni Thomas, Cleta Mitchell, and Kenneth Klukowski – the attorney who was air-dropped into the U.S. Department of Justice just 35 days before the end of Trump’s term – all have ties to front groups funded by Charles Koch or his related nonprofits.

Let’s start withJeffrey Clark, the environmental lawyer at the Department of Justice with no criminal experience that Trump wanted to name U.S. Attorney General because he was willing to go all-in with the attempted coup. After the failed coup, Clark was out of a job at the Department of Justice. He was, in short order, named Chief of Litigation and Director of Strategy at a group called the New Civil Liberties Alliance (NCLA). That’s a curious hire for someone likely facing a long criminal investigation and possible conviction.

NCLA has received millions of dollars from Charles Koch related entities. The Charles G. Koch Foundation gave NCLA $1 million in 2017, $1 million again in 2018, and $1 million again in 2019 for “general operating support,” according to its publicly-available 990 tax filings with the IRS. The Charles Koch Institute gave NCLA $1 million in 2020. Donors Trust, a dark money nonprofit with Charles Koch’s fingerprints all over it, gave NCLA more than $2 million from 2018 through 2020, according to its 990 filings.

In addition to needing a job after the failed coup attempt, Jeffrey Clark needed a plugged-in attorney. Somehow, he found his way to Harry MacDougald, a Managing Partner at Caldwell, Carlson, Elliott & DeLoach. The fossil fuels industry watchdog, DeSmog, describes MacDougald as follows:

“MacDougald was part of the legal team that worked with the Southeastern Legal Foundation to challenge the EPA‘s endangerment finding on greenhouse gases.In its lawsuit against the EPA, Southeastern Legal identified its allies in the effort as ‘like-minded organizations’ including the Competitive Enterprise Institute, Heritage Foundation, Cato Institute, and the Independent Women’s Forum, among others.”

DeSmog notes that MacDougald spoke at the Heartland Institute’s “America First Energy Conference” in New Orleans in 2018. The Heartland Institute is a climate science denier that has received more than $26 million from two Koch-related groups, Donors Capital Fund and Donors Trust, according to the Conservative Transparency Project using publicly available 990 IRS tax filings. The conference was promoted as follows:

“The purpose of this event is to promote and expand energy freedom in the United States, as outlined in President Donald Trump’s bold America First Energy Plan, a proposal first released during the 2016 presidential campaign. The president’s plan marks a decisive change in direction from the Obama administration’s ‘war on fossil fuels’…”

Two of the allied groups mentioned above, the Cato Institute and the Heritage Foundation, have long histories with Koch money.Charles Koch and his late brother, David, were actually secret owners of the Cato Institute for decades. Greenpeace has called the Heritage Foundation “Koch Industries’ Climate Denial Front Group” and reports that it has received $6,130,201 from Koch foundations from 1997 through 2017.

Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, who was firing off all of those emails to Trump’s White House Chief of Staff, Mark Meadows, to press for the attempted coup, had previously received $1,051,214 in compensation from the Heritage Foundationover a number of years. Clarence Thomas failed to report that compensation on his financial disclosure forms at the Supreme Court, even though he was required to do so.

The ties between Ginni Thomas and another attempted coup collaborator, Cleta Mitchell, run deep – with all roads leading to Koch money. As we reported in March:

In the emails that Ginni Thomas sent to Trump’s Chief of Staff, Mark Meadows, one of the people that she told Meadows to listen to was attorney Cleta Mitchell – a woman who has both a longstanding association with Ginni Thomas as well as with Koch front groups.Trump’s phone log for January 6 shows that Cleta Mitchell was one of the people that Trump spoke with at 7 :53 p.m. on the evening of the attack on the Capitol.

Cleta Mitchell has been in the news previously as the lawyer who was on the January 2, 2021 call with Donald Trump when he phoned the Secretary of State of Georgia, Brad Raffensperger, and told him: “I only need 11,000 votes.**Fellas, I need 11,000 votes. Give me a break**.” That call took place two months after the presidential election. (Mitchell stepped down from her long-term employment at law firm Foley & Lardner after her presence on that call was made public.)

Cleta Mitchell is also the attorney who filed an amicus brief in the Citizens United case before the Supreme Court that was decided on January 21, 2010. That case would be the tipping point to allow unlimited sums from corporations – like Koch Industries — in U.S. elections.

Just eight days after Justice Thomas voted in favor of that decision to open the floodgates to corporate money in campaigns, Cleta Mitchell made a move that looked very much like a quid pro quo to Ginni Thomas. Mitchell, then still a partner at Foley & Lardner, filed an application with the Internal Revenue Service to set up a nonprofit called Liberty Central, Inc. on behalf of Ginni Thomas. According to IRS tax filings, Liberty Central received a combined $1.478 million from dark money donors in 2009 and 2010. [harlan crow]

On the IRS tax filings for Liberty Central for 2009 and 2010, Ginni (Virginia) Thomas is listed as President and CEO. The 2010 tax filing shows that Ginni Thomas received $120,511 in compensation from Liberty Central that year. She eventually stepped down from an official post at the nonprofit, stating she would serve as a consultant. [gary aldrich merge]

Liberty Centralhad the fingerprints of Charles Koch all over it. Acting as General Counsel in 2010 for Liberty Central was a former lawyer for the Charles G. Koch Foundation, Sarah Field. A former Koch lobbyist, Matt Schlapp, served on the Board of Liberty Central at inception.

Mitchell’s law firm, Foley & Lardner, employed three attorneys working as lobbyists for a Koch Industries affiliate, Koch Companies Public Sector, LLC in Madison, Wisconsin in 2011. The Koch-related lobbyists were Ray Carey, Jason Childress and Kathleen Walby.

Mitchell was a former lobbyist at the federal level in years 2005 through 2008 for the Alliance for Charitable Reform, a project of The Philanthropy Roundtable, another tax-exempt organization. Donors Trust and Donors Capital Fund, two dark money groups which also have Charles Koch’s fingerprints all over them, were spun off from the Philanthropy Roundtable in 1999. (See our report: Koch Footprints Lead to Secret Slush Fund to Keep Fear Alive.)

The financial disclosure forms filed by Clarence Thomas show that from 2011 through 2017, Ginni Thomas received a “salary” from the Daily Caller, a right-wing spin organization founded in 2010 by Fox News commentator Tucker Carlson and former Dick Cheney aide Neil Patel. Its creation was announced at a gathering at the Heritage Foundation. The Daily Caller’s affiliated News Foundation has received funding from the Koch Family Foundations and the Charles Koch Institute.

Despite the previous scandal over Clarence Thomas failing to report that Ginni Thomas had received income from the Heritage Foundation, there are no dollar ranges listed on his financial disclosure forms to show the range of “salary” Ginni Thomas actually received from the Daily Caller from 2011 to 2017.

From 2011 through 2020, Clarence Thomas shows that his wife was receiving “salary and benefits” from Liberty Consulting. But again, there is no range of salary and benefits shown. Instead, Liberty Consulting is listed under “Investments” and shows a “book value” of $100,000 to $250,000 in 2019, which then drops to $15,000 to $50,000 in 2020.

Then there isKen Klukowski, the man air-dropped into the Department of Justice just 35 days before Trump’s term ended to work at the elbow of Jeffrey Clark. The Select Committee believes that Klukowski may have been involved in drafting the proposed letter to state officials which falsely claimed that the Justice Department had “identified significant concerns” about the vote totals in those states and the states should consider sending “a separate slate of electors supporting Donald J. Trump.”

Klukowski had been a writer at the right-wing outlet, Breitbart, which was formerly led by former Trump White House advisor, Steve Bannon. Bannon was the long-tenured filmmaker for Citizens United, the nonprofit involved in the history-making case at the U.S. Supreme Court that opened the floodgates to corporate money in campaigns. Bannon made right-wing propaganda documentaries for Citizens United like “Fire from the Heartland,” a glowing tribute to Michele Bachmann; “The Undefeated,” profiling the rise of Sarah Palinto national prominence and the darling of the Tea Party movement; “Generation Zero,” blaming the 2008 financial crash on liberals instead of the Wall Street bank executives who presided over the unprecedented frauds; and ,” demonizing the young people attempting to remove their democracy from the iron grip of the one percent as sinister criminals.

Klukowski got his law degree from George Mason University, one of the largest and longest recipients of Koch money. In just the three most recent years that public 990 tax filings are available, they show that the Charles G. Koch Foundation gave a total of $46.89 million to George Mason University from 2017 through 2019.

In 2018, New York Times reporters Erica L. Green and Stephanie Saul wrote about how newly-released documents showed that Koch’s money came with strings attached at George Mason University:

“The documents reveal in surprising detail that for years, as George Mason grew from a little-known commuter school to a major public university and a center of libertarian scholarship, millions of dollars in donations from conservative-leaning donors like the Charles Koch Foundation had come with strings attached.

“As early as 1990, entities controlled by the billionaire brothers Charles G. and David H. Koch were given a seat on a committee to pick candidates for a professorship that they funded, the records show. Similar arrangements that continued through 2009 gave donors decision-making roles in selecting candidates for key economics appointments at the Mercatus Center,a Koch-funded think tank on campus that studies markets and regulation. The appointments, which also created faculty lines at George Mason, were steered to professors who, like the Kochs, embraced unconstrained free markets.”

And, finally, there is John Eastman, the Trump lawyer who ranted on the stage before the crowd at the Capitol on January 6 about widespread voter fraud in the election and, according to the Select Committee, played a key role in the attempted coup.

Both Cleta Mitchell and John Eastman are tied to the Public Interest Legal Foundation. Mitchell is the Chair of the Board and Eastman is a Director. The New York Times has reported that it was Mitchell who “enlisted John Eastman, the lawyer who crafted specious legal theories claiming Vice President Mike Pence could keep Mr. Trump in power.”

Eastman is also Chairman of the Board of the National Organization for Marriage (NOM) according to its website, a group opposing same-sex marriage. Wall Street On Parade looked into that group in 2011. We found multiple ties to the Koch network’s pursuit of the Citizens United decision at the U.S. Supreme Court.

When Ginni Thomas filed her registration statement for her own tea party group, Liberty Central, Inc., with the state of West Virginia on December 31, 2009, she listed her accountant as Neil Corkery with an address of 8665 Sudley Road, Suite 182 in Manassas, Virginia. According to a UPS store employee located there, there was no other business located at this site; just post office boxes. When Ginni Thomas filed her first IRS 990 form for tax year 2009 for Liberty Central, she listed her tax preparer as Conlon and Associates LLC.

These same two names, Neil Corkery andConlon and Associates LLC,would end up on the 2009 tax filings of the National Organization for Marriage.

The IRS 2009 tax filing for the National Organization for Marriage, Inc. shows it took in $7.1 million and made five grants totaling $2,105,000. Stand for Marriage Maine received 93 percent of those funds, or $1,960,000. Stand for Marriage Maine waged the successful 2009 repeal of same-sex marriage in Maine, using the same tactics and, indeed, the same ad and marketing firm that was used in the California Proposition 8 battle.

Secret donors washing money through a 501(c)(4) tax exempt organization and then funneling it to a Political Action Committee in Maine brought a request for an investigation to the Maine Commission on Governmental Ethics and Election Practices by Fred Karger, founder of Californians Against Hate. The Commission initiated an investigation. Stepping forward to represent both the National Organization for Marriage and Stand for Marriage Maine PAC was the law firm Bopp, Coleson & Bostrom.

James Bopp of Bopp, Coleson & Bostrom is (wait for it) the lawyer who represented Citizens United in the lower courts and, hoping to gut campaign financing reform, maneuvered the case to the U.S. Supreme Court.

The law firm Bopp, Coleson & Bostrom is located in Terre Haute, Indiana. What is the statistical probability of it being sheer coincidence that an Indiana law firm is involved in a nonprofit advocacy group case in Maine involving secret donors; also involved in the Citizens United case before the U.S. Supreme Court in Washington D.C. involving secret donors; and the wife of Justice Clarence Thomas is using the same Neil Corkery and Conlon and Associates for her Tea Party nonprofit as Bopp’s anti same-sex marriage clients in the Maine case?

We strongly urge the January 6 Select Committee to provide the full, unvarnished truth to the American people.

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Mark Chenoweth

Executive Director and General Counsel at New Civil Liberties Alliance

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Reed D. Rubinstein, who worked for the Trump Education Department

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NCLA Questions CDC’s Statutory Authority to Issue Eviction Moratorium and Deny Due Process to Property Owners

Learn More

NCLA is Challenging Covid-19 Regulations and Orders Imposed by Executive Decree

The COVID-19 pandemic has proven to be a threat not only to the health and safety of Americans, but also to our way of life. Under the aegis of public safety, federal, state and local governments have violated constitutional law by implementing regulations and emergency orders by executive decree.

As elected leaders and bureaucrats have taken turnstrampling civil rights under foot, NCLA has been working overtime to restore the constitutional guardrails on the Administrative State’s pandemic response.

COVID-19 Legal Action

NCLA Represents COVID-19 Survivors in Class-Action Lawsuit Against Mich. State U. Vaccine Mandate

Norris v. Michigan State University

U.S. Supreme Ct. Validates NCLA Argument that CDC’s Eviction Moratorium Lacks Statutory Authority

Brown, Rondeau, Krausz, Jones and the National Apartment Association v. CDC

Commentary

MSU Shot Mandate Tramples Liberty

Among the most bizarre aspects of an undeniably strange past 18 months has been the refusal of the media, as well as various governmental entities and public health authorities, to acknowledge the existence of naturally acquired immunity in the context of COVID-19.

Peaceable Assembly: Accept No Substitute

Aristotle told us that humans are social animals—interaction with each other is essential to our wellbeing. Technology has enabled us to communicate with family, friends, and associates cheaply, easily, and instantaneously around the globe, which is great. But FaceTime is not a substitute for gathering together, face-to-face in the same place and at the same time, to share a laugh, a meal, a story, a disagreement, or just to sit there quietly.

Press Releases

NCLA Files for Summary Judgment in Class-Action Lawsuit Against CDC’s Eviction Moratorium

Aug 31, 2021

NCLA Represents COVID-19 Survivors in Class-Action Lawsuit Against Mich. State U. Vaccine Mandate

Aug 27, 2021

US Supreme Ct Validates NCLA Argument that CDC’s Eviction Moratorium Lacks Statutory Authority

Aug 27, 2021

New Civil Liberties Alliance | 1225 19th Street Northwest, Suite 450, Washington, DC 20036 | (202) 869-5210

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Our Team & Leadership

Brianna Bauer

Paralegal

Mark Chenoweth

Mark Chenoweth

Exec. Director & General Counsel

Jeffrey Bossert Clark

Jeffrey Bossert Clark

Chief of Litigation and Director of Strategy

Michael P. DeGrandis

Senior Litigation Counsel

Adi Dynar

Litigation Counsel

Will Gale

Content Writer

Harriet Hageman

Senior Litigation Counsel

Philip Hamburger

President

Clegg Ivey

Director of Engagement

Caleb Kruckenberg

Litigation Counsel

Gabriel Lepinski

Development Associate

Sheng Li

Litigation Counsel

Margaret A. Little

Senior Litigation Counsel

Jared McClain

Litigation Counsel

Lauren (McDonald) Dionisio

Director of Development

Ruslan Moldovanov

Communications Associate

Sean Murphy

Paralegal

Judy Pino

Comms. & Marketing Director

Kara Rollins

Litigation Counsel

Richard Samp

Senior Litigation Counsel

John J. Vecchione

Senior Litigation Counsel

Jenin Younes

Litigation Counsel

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Board of Advisors

:{:{Chairman, Hon. Janice Rogers Brown, retired judge of the U.S. Court of Appeals for the D.C. Circuit and :(style="box-sizing:border-box;margin:0px;padding:0px;border:0px;outline:0px;text-size-adjust:100%;vertical-align:baseline;background:transparent"):}::(style="box-sizing:border-box;margin:0px;padding:0px;border:0px;outline:0px;text-size-adjust:100%;vertical-align:baseline;background:transparent"):}::{:{former Associate Justice of the California Supreme Court}:}:

Kristina Arriaga, Former Vice Chairwoman of U.S. Commission on International Religious Freedom

Randy Barnett, Professor of Law at Georgetown Law School

Peter Berkowitz, Tad and Dianne Taube Senior Fellow,Hoover Institution, Stanford University

Jennifer Braceras, Former Commissioner, U.S. Commission on Civil Rights

Mike Carvin, Partner at Jones Day

Robin Conrad, Law Office of Robin S. Conrad

Will Consovoy, Partner atConsovoy McCarthy

Chuck Cooper, Partner at Cooper & Kirk

Don Elliott, Senior Of Counsel at Covington and Visiting Professor at Yale Law School

Dan Gallagher, Former Commissioner, U.S. Securities & Exchange Commission

Allyson Ho, Partner atGibson Dunn

Erika Jones, Partner at Mayer Brown

Christopher Landau, Former Ambassador to Mexico

Gary Lawson, Professor at Boston University School of Law

Julia Mahoney, Professor at the University of Virginia School of Law

Jonathan Mitchell, Mitchell Law PLLC

Elizabeth Papez, Partner at Gibson Dunn

Roger Pilon, B. Kenneth Simon Chair in Constitutional Studies, Cato Institute

Joseph Postell, Associate Professor of Politics, Hillsdale College

Glenn Reynolds, Professor of Law at the University of Tennessee College of Law

Brian Richman, Associate at Gibson Dunn

David Schoenbrod, Professor of Law at the New York Law School

Dan Troy, former General Counsel, GSK

Eugene Volokh, Professor of Law at UCLA Law School

Peter Wallison, Arthur F. Burns Fellow, Financial Policy Studies, AEI

Rebecca Wood, Partner at Sidley

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chevron watch deference?!

Welcome to ChevronWatch, NCLA’s monthly publication that summarizes significant judicial deference cases. NCLA is committed to keeping tabs on the problems that judicial deference causes the federal courts. We are particularly concerned thatdeference doctrines like Chevron compromise judicial independence, require judges to violate their oaths, and deny due process rights to litigants. After all, how can a party in a lawsuit against the government get a fair trial if the judge defers to the government’s interpretation of the law? This newsletter is a group effort. If we missed a case or you know of an upcoming case you would like for us to feature, please let us know! Better yet, share with a friend...

https://nclalegal.org/wp-content/uploads/2019/08/ChevronWatch-Vol-1.pdf

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no lnx press coverage

Care for Neediest Hangs in Balance in High Court HHS Case

Oct 8, 2021 | In the News

...Others agree. The New Civil Liberties Alliance says it’s “particularly disturbed by the appeals court’s decision not to exercise its independent judgment regarding the best reading of the statute at issue.” Likewise, the Americans for Prosperity Foundation says...

SEC Sued over Nasdaq’s ‘Diversity’ Rule for Race, Gender, LGBTQ Quotas on Boards

Oct 7, 2021 | In the News

The National Center for Public Policy Research, a conservative think tank advocating free market policies, sued the U.S. Securities and Exchange Commission (SEC) on Tuesday after it approved the Nasdaq’s controversial “diversity” rule. The policy attempts to avoid the...

Fifth Circuit Hears Arguments In Bump Stock Ban Case

Oct 7, 2021 | In the News

...In no time flat, there were proposals and bills banning the devices, proposals that sometimes went well beyond just bump stocks. President Trump eventually decided to ban them via executive order, thus negating any push for federal regulations. However, some still...

Second Circuit Declines to Strike Down No-Deny Provision of Executive’s SEC Consent Agreement

Oct 6, 2021 | In the News

On Sept. 27, 2021, the U.S. Court of Appeals for the Second Circuit rejected the most recent legal challenge to the Securities and Exchange Commission’s (SEC) practice of using “no-deny” consent agreements to resolve civil enforcement actions. This practice allows...

Second Circuit Declines to Strike Down No-Deny Provision of Executive’s SEC Consent Agreement

Blog: New Challenge to Nasdaq Board Diversity Rule

Oct 6, 2021 | In the News

A new petition has been filed challenging the Nasdaq board diversity rule (see this PubCo post). The National Center for Public Policy Research filed the petition on Tuesday with the U.S. Court of Appeals for the Third Circuit, but asked the court to transfer the...

Crypto User Asks 1st Circuit To Curtail IRS Collection of Records

Oct 6, 2021 | In the News

It’s no secret that the Internal Revenue Service suspects thousands of cryptocurrency users of underreporting their tax liability. In 2017, the IRS won a ruling that granted the government access to transaction records belonging to more than 10,000 customers of the...

Arguments Surrounding Constitutionality of Bump Stocks Hit the Fifth Circuit

Oct 6, 2021 | In the News

An attorney told a three-judge panel at the Fifth Circuit Court of Appeals Wednesday afternoon that a federal judge in Texas was mistaken in finding last year that the Bureau of Alcohol, Tobacco, Firearms and Explosives had authority to outlaw bump stocks that enable...

Care for Neediest Hangs in Balance in High Court HHS Case

Nasdaq Board-Diversity Regulations Face Another Court Challenge

Oct 5, 2021 | In the News

...The National Center for Public Policy Research on Tuesday submitted a petition with the U.S. Court of Appeals for the Third Circuit to review the regulations the Securities and Exchange Commission approved Aug. 6. Another group, the Alliance for Fair Board...

NH Man Presses 1st Circ. To Revive IRS Crypto Doc Suit

Oct 5, 2021 | In the News

A New Hampshire man urged the First Circuit on Tuesday to revive his suit challenging the IRS' procurement of his records from cryptocurrency platforms, saying federal law prohibiting suits that restrain ... Read the full article

NH Man Presses 1st Circ. To Revive IRS Crypto Doc Suit

Biz Groups Back Texas, Miss., La. Bid In Tax Cut Limit Suit

Oct 5, 2021 | In the News

...In another brief filed in support of the states the same day, limited government advocacy group New Civil Liberties Alliance argued that Congress cannot purchase states' sovereign taxation power. The group also repeated the states' argument that the mandate...

SCOTUS Won’t Hear Appeal Challenging Charlie Baker’s Sweeping Pandemic Powers

Oct 4, 2021 | In the News

The U.S. Supreme Court will not hear an appeal of a state court decision that found Gov. Charlie Baker had the right to impose sweeping pandemic-era orders closing businesses, limiting gatherings and requiring masks in an attempt to limit the spread of coronavirus....

Civil Liberties Group Supports Texas, Mississippi, Louisiana in ARPA Suit

Oct 4, 2021 | In the News

The New Civil Liberties Alliance filed an amicus brief with the United States District Court for the Northern District of Texas, Amarillo Division, in support of the Texas, Mississippi, and Louisiana attorneys general in the states’ dispute with the U.S. Treasury...

Ordering Private Companies to Impose Vaccine Mandates Is Completely Unconstitutional

Oct 1, 2021 | In the News

NCLA Litigation Counsel Jenin Younes joins "O'Connor & Company" on WMAL to discuss natural immunity to COVID-19 and NCLA's cases against George Mason University and Michigan State University and their vaccine mandates.

The Legality of Employer and Government Enforced Vaccine Mandates

Sep 29, 2021 | In the News

As governments and employers across the U.S. expand the use of vaccination mandates for their employees, a debate has broken out as to how far such restrictions can go. Ian Carleton Schaefer, the chair of Loeb & Loeb's New York employment and labor practice, and...

Court Upholds SEC ‘Gag Rule’ for Executives Who Settle

Sep 28, 2021 | In the News

...In a statement, the New Civil Liberties Alliance said it would continue to challenge the SEC’s restriction on future challenges. “NCLA is committed to end this anomalous practice that dangerously insulates SEC from criticism by those in the best position to point...

Government Is Interfering in What Should Be Personal Health Decisions People Make With Their Doctor

Sep 28, 2021 | In the News

NCLA Litigation Counsel Jenin Younes joins "Tucker Carlson Tonight" on Fox News to discuss naturally acquired immunity to COVID-19 and NCLA's cases against George Mason University and Michigan State University and their vaccine mandates.

Crypto User Asks 1st Circuit To Curtail IRS Collection of Records

2nd Circuit Rejects Ex-Xerox Exec’s Challenge To Gag Order

Sep 27, 2021 | In the News

Former Xerox executive Barry Romeril can’t ditch his agreement not to deny accounting fraud allegations as part of a settlement with the U.S. Securities and Exchange Commission, the 2nd U.S. Circuit Court of Appeals ruled on Monday. U.S. Circuit Court Judge Denny Chin...

NH Man Presses 1st Circ. To Revive IRS Crypto Doc Suit

2nd Circ. Denies Ex-Xerox Exec’s Bid To Toss SEC Gag Order

Sep 27, 2021 | In the News

The Second Circuit said in a published opinion Monday that it could find no legal error or due process violation in an 18-year-old gag order from a former Xerox executive's settlement with the U.S. Securities and Exchange Commission. An appellate panel denied former...

California Colleges and Public Schools Ordering More Vaccine Mandates Than Most Other States

Sep 24, 2021 | In the News

...Other states already have class action lawsuits working through the courts. The New Civil Liberties Alliance filed a class-action lawsuit challenging Michigan State University’s vaccine mandate for employees with naturally acquired immunity to COVID-19... Read the...

How Massachusetts Annihilated Private Property Rights In The Name Of COVID Restrictions

Sep 21, 2021 | In the News

In the waning days of 2020, as COVID-19 cases in Massachusetts were summiting the highest peak of the pandemic, the Supreme Judicial Court (SJC) of Massachusetts decided that the First Amendment’s Assembly Clause does not protect private assembly by private citizens...

University System of Maryland Among Schools Facing Vaccine Lawsuit

Sep 20, 2021 | In the News

...New Civil Liberties Alliance is involved in other vaccine mandate cases, and Younes acknowledges thus far, courts have been siding with schools. "The employee mandates, so far, have mostly been upheld at universities," Younes said. "I think that things will change...

Court Precedents Appear to Back Biden’s National Coronavirus Vaccine Order, Legal Experts Say

Sep 19, 2021 | In the News

...Jeanna Norris, an MSU administrative associate and fiscal officer who previously recovered from a case of COVID-19, sued administrators over the mandate, saying she received medical advice from her immunologist that she does not need a vaccine. Read the full...

Michigan State Accepts Foreign COVID Vaccines but Rejects Natural Immunity, Lawsuit Alleges

Sep 17, 2021 | In the News

Michigan State University recognizes COVID-19 vaccines not approved for use in the United States with lower documented efficacy than natural immunity, according to a federal lawsuit. It's the second filed by the New Civil Liberties Alliance (NCLA) against a public...

2 Women Dated For Years. After It Ended, JMU Said Their Relationship Was ‘Nonconsensual.’

Sep 15, 2021 | In the News

Ten years ago, Alyssa Reid landed her dream job: assistant director of the speech and debate team at James Madison University (JMU). She also became a faculty member of the School of Communication Studies, where she met a student named Kathryn Lese. Lese took Reid's...

NH Man Presses 1st Circ. To Revive IRS Crypto Doc Suit

Man Can’t Sue IRS Over Crypto Exchange Docs, 1st Circ. Told

Sep 15, 2021 | In the News

A New Hampshire man's efforts to block the Internal Revenue Service from obtaining his records from cryptocurrency platforms are barred by federal law prohibiting suits that could restrain tax collection, the U.S. told the First Circuit. The appeals court should not...

« Older Entries

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Amicus Briefs

Aguila v. Ducey

AMICUS BRIEF SUMMARY – “Police Power” in the hands of the governor does not include the power to legislate, argues the amicus brief filed today by the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, in the Arizona Supreme Court.

American Honda Motor Co. v. Walther

AMICUS BRIEF SUMMARY – NCLA asks the Arkansas Supreme Court to stop judges in the state from giving “great deference” to the Department of Finance and Administration in a post-2009 Arkansas tax procedure case…

American Hospital Association v. Becerra

AMICUS BRIEF SUMMARY – NCLA argues that the D.C. Circuit improperly applied Chevron deference to HHS’s interpretation of a statute that allowed the agency to set reimbursement rates for the plaintiffs, a group of hospitals that participate in the Section 340B Drug Pricing Program.

Axon Enterprise v. FTC

AMICUS BRIEF SUMMARY – NCLA filed an amicus curiae brief in the U.S. District Court for the District of Arizona in support of Axon Enterprise Inc. in the body camera company’s fight to keep its constitutional claims against the U.S. Federal Trade Commission (FTC) in federal court…

Beshear v. Goodwood Brewing Company

AMICUS BRIEF SUMMARY – The amici curiae, NCLA, the Southeastern Legal Foundation, and the Mackinac Center for Public Policy, argue that the Kentucky Constitution denies the governor dictatorial power. To ensure such power does not develop in any branch, the Kentucky Constitution separates government power and vests the legislature with law-making authority, which the legislature can always reclaim once delegated.

Brackeen v. Haaland

AMICUS BRIEF SUMMARY – This case is particularly important to NCLA. It is disappointed that three judges on the Fifth Circuit would eschew their fundamental duty “to say what the law is” and defer to agency interpretations of statutes under the Chevron doctrine…

Buffington v. McDonough

AMICUS BRIEF SUMMARY – Mr. Buffington, who suffered service-connected disability (tinnitus) while serving for the U.S. Air Force, is seeking disability benefits in a lawsuit against V.A. The law is clear that when one asks for resumption of disability payments to which one is entitled, the resumption should begin as of the date one leaves active service.

Campaign Legal Center v. Federal Election Commission

AMICUS BRIEF SUMMARY – NCLA filed an amicus brief in the U.S. District Court for the District of Columbia in Campaign Legal Center v. Federal Election Commission. The Campaign Legal Center alleges the Federal Election Commission has taken no action on an administrative complaint CLC filed and that FEC’s “failure to act” is “contrary to law.”

Children’s Hospital Association of Texas v. Azar

AMICUS BRIEF SUMMARY – NCLA submitted an amicus brief to the U.S. Supreme Court in support of the petition for a writ of certiorari filed by a group of children’s hospitals from around the country. NCLA believes the D.C. Circuit Court of Appeals erred in reversing the district court’s decision in this case, which had struck down a Centers for Medicare & Medicaid Services (CMS) formula for hospital payments that violates the statute.

Community Housing Improvement Program, v. City of New York

AMICUS BRIEF SUMMARY – NCLA believes that the lower court erred when it declared that the New York Rent Stabilization Law (RSL) does not violate the due process rights of the Plaintiffs-Appellants related to their property, when in fact, it does. Plaintiffs-appellants, NCLA argues, have a fundamental right to their property under the U.S. Constitution, so the RSL should have been subjected to strict scrutiny.

Fleming v. USDA

AMICUS BRIEF SUMMARY – In this case, NCLA takes issue with the United States Department of Agriculture’s (“USDA”) use of Administrative Law Judges (“ALJs”) who violate Article II and the separation of powers…

Francis v. Kings Park Manor

AMICUS BRIEF SUMMARY – NCLA filed an amicus brief in the U.S. Court of Appeals for the Second Circuit in Donahue Francis v. Kings Park Manor, Inc., et al., on rehearing en banc. NCLA’s brief, which supports neither party, asks the bench to eschew Chevron deference in its decision, respect the rule of lenity, observe the principle of party presentation, and avoid the appearance of bias in this case.

Goldwater Institute v. HHS

AMICUS BRIEF SUMMARY – The Constitution requires federal judges to exercise independent judgment and refrain from bias when interpreting the law. These are foundational constitutional requirements for having an independent judiciary. Article III gives federal judges life tenure and salary protection to ensure…

Guedes v. ATF

AMICUS BRIEF SUMMARY – Chevron deference is bad enough on its own, for it unconstitutionally requires judges to abandon their independent judgement and, where the government is a party, requires them to engage in systematic bias in favor of the most powerful of parties. But the D.C. Circuit’s decision expands Chevron deference…

Gundy v. U.S.

AMICUS BRIEF SUMMARY – The judgment of the court of appeals should be reversed for four separate and independent reasons. First, 34 U.S.C. § 20913(d) violates the Constitution by divesting Congress of legislative powers and transferring those powers to the Attorney General…

Harris Funeral Homes v. EEOC

AMICUS BRIEF SUMMARY – This case will address what Title VII of the Civil Rights Act of 1964 means by prohibiting employment discrimination “because … of sex.” Specifically, the Supreme Court will answer whether that language encompasses discrimination because of sexual orientation, gender identity, and/or transgender status. However the Court decides…

Jarkesy v. SEC

AMICUS BRIEF SUMMARY – NCLA is asking the U.S. Court of Appeals for the Fifth Circuit to review whether Mr. Jarkesy was adjudicated by an Administrative Law Judge (ALJ) who was improperly insulated from removal. Mr. Jarkesy was also denied his jury trial rights and equal protection of the law, among other problems.

Jessop v. City of Fresno

AMICUS BRIEF SUMMARY – In this case, NCLA is particularly disturbed that the Ninth Circuit Court of Appeals has willfully opted out of deciding a matter as simple—but gravely consequential— as whether it is unconstitutional for a police officer to use the cover of a search warrant to steal from a suspect. By choosing not to decide the issue, the panel granted immunity…

Kisor v. Wilkie

AMICUS BRIEF SUMMARY – The Constitution requires federal judges to exercise independent judgment and refrain from bias when interpreting the law. These are foundational constitutional requirements for an independent judiciary. Article III gives federal judges life tenure and salary protection to ensure that judicial pronouncements…

Lent v. California Coastal Commission

AMICUS BRIEF SUMMARY – The case is the first to challenge a CCC’s penalty order issued under the recently enacted section 30821. The Commission seeks deference to its interpretation that sections 30820 and 30821 permit consideration of deterrence in its administrative civil penalty determination.

Liu v. SEC

AMICUS BRIEF SUMMARY – It is undisputed that the “disgorgement” remedy appears nowhere in the SEC’s enabling statutes. History reveals that the disgorgement remedy was created and expanded by an strategic enforcement and litigation process allowing SEC to arrogate to itself powers not granted by Congress. This process built…

Lovato v. U.S.

AMICUS BRIEF SUMMARY – NCLA filed an amicus brief in U.S. v. Daniel Lovato, urging the federal court to re-examine the circuit’s treatment of “Stinson Deference.” The case presents an opportunity for the U.S. Court of Appeals for the Tenth Circuit to join…

Monex Deposit Company v. Commodity Futures Trading Commission

AMICUS BRIEF SUMMARY – NCLA filed an amicus brief in support of the petitioners’ request for a Writ of Certiorari from the U.S. Supreme Court in Monex Deposit Company, et al. v. Commodity Futures Trading Commission. In this case, CFTC is testing the furthest reaches

Oracle America Inc. v. U.S. Department of Labor

AMICUS BRIEF SUMMARY – NCLA filed an amicus brief in the U.S. District Court for the District of Columbia in support of Oracle’s case against the Department of Labor (DOL). Oracle has challenged a portion of the regulations that set up the enforcement and adjudication system in the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).

Premier Healthcare Investments v. UHS of Anchor

AMICUS BRIEF SUMMARY – NCLA filed an amicus brief in the Supreme Court of Georgia in the case of Premier Healthcare Investments, L.L.C. v. UHS of Anchor, L.P. NCLA submitted a neutral brief in support of neither party that solely focuses on the constitutional arguments for rejecting judicial deference…

Seila Law v. CFPB

AMICUS BRIEF SUMMARY – The precedent of this Court does not compel an outcome for either side. Although decisions such as Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and Morrison v. Olson, 487 U.S. 654 (1988), approved statutes that insulate administrative officers from presidential removal, each of those rulings…

Skyworks v. CDC

AMICUS BRIEF SUMMARY – NCLA filed an amicus brief in the case Skyworks, LTD., et al., v. Centers for Disease Control and Prevention, et al., on behalf of the National Apartment Association and the National Association of Residential Property Managers as amici in support of the challenge brought forth by plaintiffs.

State of Texas v. Yellen

The “Tax Cut Ban” provision within the American Rescue Plan Act of 2021 (ARPA) upends the structure of American Constitutionalism as we know it. NCLA argues that the conditions of the Tax Cut Ban violate several aspects of the Constitution, commandeer state officials, eviscerate federalism, and deny Americans a Republican form of state government.

State of West Virginia v. Department of the Treasury

AMICUS BRIEF SUMMARY – In the boldest federal power grab in recent memory, Congress is attempting to usurp the sovereign powers of the States and seize their taxing authority. The American Rescue Plan Act of 2021 (ARPA), signed by President Biden on March 11, includes a Tax Cut Ban that requires States receiving federal rescue funds to give up their ability to decrease taxes for three or more years.

Sun City Home Owners Association v. Arizona Corporation Commission

AMICUS BRIEF SUMMARY – The amicus brief asks the Arizona Supreme Court to interpret the statutory or regulatory texts for itself rather than deferring to the interpretation of an administrative agency. NCLA argues that the Arizona Court of Appeals erred in its January 2020 ruling by giving “extreme deference” to the Arizona Corporation Commission (ACC) in violation…

Tesla, Inc. v. National Labor Relations Board

AMICUS BRIEF SUMMARY – NCLA filed an amicus brief in the U.S. Court of Appeals for the Fifth Circuit in support of Tesla, Inc.’s lawsuit against NLRB. Tesla Inc. v. NLRB challenges the Board’s March 2021 ruling that Tesla violated the National Labor Relations Act (NLRA) and further that the electric vehicle manufacturer would be required to “direct Musk to delete [his] unlawful tweet.”

Tiger Lily v. U.S. Department of Housing and Urban Development

AMICUS BRIEF SUMMARY – In a joint amicus brief filed in the U.S. District Court for the Western District of Tennessee, NCLA condemned an eviction moratorium order imposed by the Centers for Disease Control and Prevention (CDC) last month to purportedly prevent the spread of COVID-19.

U.S. v. Havis

AMICUS BRIEF SUMMARY – Jeffery Havis was sentenced to federal prison in reliance on a provision of the U.S. Sentencing Guidelines Manual that was passed without required Congressional approval…

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U.S. v. Nasir

AMICUS BRIEF SUMMARY – NCLA filed an amicus brief in U.S. v. Malik Nasir, urging the federal court to re-examine the circuit’s treatment of “Stinson Deference.” The case presents an opportunity for the U.S. Court of Appeals for the Third Circuit to join…

U.S. v. Tabb

AMICUS BRIEF SUMMARY – NCLA filed an amicus brief in U.S. v. Zimmian Tabb, urging the U.S. Court of Appeals for the Second Circuit to abandon “Stinson Deference.” This judicial deference doctrine requires federal judges to defer to commentary the United States Sentencing Commission (U.S.S.C.) has written interpreting the U.S. Sentencing Guidelines (U.S.S.G.).

Williams Alaska Petroleum v. State of Alaska

AMICUS BRIEF SUMMARY – NCLA is asking the court not to defer to a legal interpretation made by the Alaska Department of Environmental Conservation (DEC). Instead, NCLA argues that Alaskan courts need to interpret the law without deferring to the agency’s interpretation.

Wolf v. Scarnati

AMICUS BRIEF SUMMARY – NCLA’s brief argues that the Governor’s argument is flawed. “The concurrence of both houses” is not “necessary” for a termination of disaster emergency under § 7301(c) of the Emergency Management Services Code, which authorizes the Governor to declare or proclaim a disaster emergency…

Young v. State of Hawaii

AMICUS BRIEF SUMMARY – NCLA filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in George K. Young, Jr. v. State of Hawaii, et al. in support of Mr. Young. NCLA’s brief dissuades the full court from deferring to state administrators’ factual speculations and to their interpretations of the U.S. Constitution or of state statutes and regulations.

More Amicus Briefs are coming soon. For information on our cases visit NCLA’s Case Summaries page.

Closed Cases

American Institute for International Steel Inc. v. U.S.

AMICUS BRIEF SUMMARY – NCLA filed an amicus curiae brief in support of the American Institute for International Steel, Inc. AIIS has filed a petition seeking a Writ of Certiorari from the U.S. Supreme Court in American Inst. for International Steel, Inc. v. U.S., claiming that a tariff law improperly divests legislative power…

Americans for Prosperity Foundation v. Bonta

AMICUS BRIEF SUMMARY – The question presented in this case is whether the holding of NAACP v. Alabama ex rel. Patterson will be applied to modern state attorneys-general who compel disclosure of supporter lists of unpopular organizations without articulating a substantial state interest in obtaining the information…

AMG Capital Management v. FTC; FTC v. Credit Bureau Center

AMICUS BRIEF SUMMARY – NCLA filed an amicus brief in the U.S. Supreme Court admonishing the FTC for its unlawful practice in applying the agency’s statutory provisions. FTC has transformed its limited statutory right to enjoin into an absolute right to secure any “equitable remedy.”

Carr v. Saul; Davis v. Saul

AMICI BRIEF SUMMARY – The case concerns whether claimants seeking disability benefits under the Social Security Act must “exhaust” constitutional challenges to their benefits determinations before an Administrative Law Judge (ALJ) at the Social Security Administration (“SSA”) in order…

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Collins v. Yellen

AMICUS BRIEF SUMMARY – NCLA filed an amicus brief in the U.S. Supreme Court taking aim at the unconstitutional structure of the Federal Housing Finance Agency (FHFA). NCLA asks that the Court to (1) set aside the final agency action FHFA took against Petitioners while it was unconstitutionally structured and (2) grant them meaningful relief…

Elkhorn Baptist Church v. Brown

AMICUS BRIEF SUMMARY – NCLA filed an amicus brief in the Oregon Supreme Court in Elkhorn Baptist Church, et al. v. Katherine Brown. A broad coalition of local churches brought the case after being seriously disturbed by Governor Katherine Brown’s restrictions on religious gatherings since late March in response to the COVID-19 pandemic.

Fulton v. City of Philadelphia

AMICUS BRIEF SUMMARY – NCLA filed an amicus brief in the Supreme Court of the United States in Sharonell Fulton, et al. v. City of Philadelphia, et al. In 2018, Philadelphia abruptly terminated foster placement through Catholic Social Services (CSS) leaving foster parents like Sharonell Fulton, who has fostered more than 40 children…

The Judge Rotenberg Educational Center v. FDA; Aponte v. FDA

AMICUS BRIEF SUMMARY – NCLA filed this amicus brief in the U.S. Court of Appeals for the District of Columbia Circuit supporting a challenge to a Final Rule issued by the Food and Drug Administration (FDA). The Rule bans “electrical stimulation devices” (ESDs) for aversion therapy, currently in use in only one treatment facility in the United States—the Judge Rotenberg Educational Center in Canton, Massachusetts.

Little Sisters of the Poor v. Pennsylvania

AMICUS BRIEF SUMMARY – NCLA states that in adopting the Affordable Care Act (ACA), Pub. L. 111-148 (2010), Congress improperly delegated to the administrative state the power to write laws governing the conduct of health insurance providers. Administrative agencies responded

State of Ohio v. United States Department of the Treasury

AMICUS BRIEF SUMMARY – Never before in the history of the United States has Congress conditioned the receipt of federal funds on state governments’ surrendering inherent and core sovereign taxing powers. As NCLA’s brief puts it, “a Founder who suggested that Congress’ Spending Power meant it could purchase from states the authority to oversee state spending and budgets would have been laughed out of Philadelphia—if not tarred and feathered.”

U.S. v. Arthrex Inc.; U.S. v. Polaris Innovations; Smith & Nephew Inc. v. Arthrex Inc.

AMICUS BRIEF SUMMARY – ?At issue in the consolidated set of cases is whether administrative patent judges (APJs) can be appointed by the U.S. Secretary of Commerce or whether the Constitution requires the President to appoint these judges and the Senate to confirm them.

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Mark Chenoweth

Executive Director and General Counsel at New Civil Liberties Alliance

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koch-Funded Legal Group Pushes to Allow Mass Evictions During Pandemic

By Alex Kotch | October 13th, 2020 at 3:45 PM (CDT)

The New Civil Liberties Alliance, a nonprofit heavily funded by the Charles Koch Foundation, succeeded in getting the Trump administration to greenlight eviction proceedings despite its eviction moratorium.