Guidance Petitions filed with FDA and Dept. of Education

(July 31st, 2018)

Petition for Rulemaking to Promulgate Regulations Prohibiting the Issuance, Reliance on or Defense of Improper Agency Guidance Submitted to the United States Department of Education

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Petition for Rulemaking to Promulgate Regulations Prohibiting the Issuance, Reliance on or Defense of Improper Agency Guidance Submitted to U.S. Food and Drug Administration

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Guidance Petitions filed with SEC and HUD

(July 30th, 2018)

Petition for Rulemaking to Promulgate Regulations Prohibiting the Issuance, Reliance on or Defense of Improper Agency Guidance Submitted to Securities and Exchange Commission

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Petition for Rulemaking to Promulgate Regulations Prohibiting the Issuance, Reliance on, or Defense of Improper Agency Guidance Submitted to the United States Department of Housing & Urban Development

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Opinion

The Hill: Dept. of Justice needs to do more than just promise to solve the guidance problem, by Caleb Kruckenberg

(July 23, 2018)

"After decades of unchecked expansion of the administrative state, Washington finally has recognized that it has a problem. The current administration has made an earnest commitment to regulatory reform as a matter of policy. But to achieve reform beyond the whims of the current administration, now is the time to embrace more permanent limitations."

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News

Law and LibertyJudge Kethledge is the Best Choice to Curtail the Administrative State, Matthew Downer

(July 8, 2018)

The Trump administration has made a priority of shrinking the administrative state. A recent study authored by the New Civil Liberties Alliance (NCLA), which is headed by the prominent constitutional-law scholar Philip Hamburger, concludes that “If President Trump wishes to appoint another justice who would respect the Constitution and shrink the administrative state, he would have a hard time—perhaps an impossible time—finding a better choice than Judge Ray Kethledge.”


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@hughhewitt tweet

(July 8, 2018)

The assessment of Prof. Philip Hamburger of Judge Kethledge re the administrative state is a very significant one. I hope @realDonaldTrump team puts this article on the top of the pile: (link: http://www.libertylawsite.org/2018/07/08/judge-kethledge-administrative-state-power/) libertylawsite.org/2018/07/08/jud… Judge Kethledge gets cheers from @POTUS 1st 2d and 5th Am motivated

Press Release

New Civil Liberties Alliance (NCLA) Tells Bureau of Consumer Financial Protection (BCFP): "Your Guidance Is Misguided"

NCLA calls out BCFP for unlawfully using guidance in place of rulemaking

WASHINGTON, D.C. — July 3, 2018 /PRNewswire-USNewswire/ -- In response to BCFP's Request for Information regarding its use of guidance, NCLA filed comments yesterday strongly rebuking the Bureau for its egregious abuse of guidance to effectively create new law without following statutory and constitutional requirements. Agency guidance is only allowed to clarify existing legal obligations, and not to create new ones.

"BCFP must stop unlawfully imposing new legal duties through guidance. The Bureau has engaged in de facto rulemaking without following legal requirements set out in the Administrative Procedure Act (APA) and if only for this reason, it has acted without constitutional authority," said Philip Hamburger, NCLA President.

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Press Release

New Civil Liberties Alliance to Supreme Court:  “Don’t let the Attorney General write criminal laws”  

Congress cannot pass half-a-law and tell the Attorney General to write the other half, on top of his enforcement duties  

WASHINGTON, D.C.— The Constitution vests all legislative powers in Congress, and thus bars Congress from splitting its authority with an unelected executive official. Nonetheless, when Congress in 2006 wrote the rules for registration of sex offenders in the Sex Offender Registration and Notification Act (SORNA), it gave a blank sheet, with no guidelines, to the Attorney General to create registration rules for past offenders.  

This executive lawmaking is being challenged at the U.S. Supreme Court in Gundy v. United States. Although the particular case concerns registration rules for sex offenders, the decision here will have sweeping implications for all sorts of executive lawmaking. The New Civil Liberties Alliance (NCLA) therefore today filed an amicus brief urging the Court to recognize that its doctrines have legitimized a wide range of unconstitutional executive lawmaking...

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News

The Economist: Who Has the Right to Judge Americans

(May 15, 2018)

Economist.jpg

"An amicus brief filed by the New Civil Liberties Alliance, a non-profit group, asserts that the SEC, in effect, gamed the civil-service process to obtain sympathetic judges, and that another agency, the Commodity Futures Trading Commission, was similarly adept in using the rules to dump a judge it found to be too independent."

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Published Speech

Hillsdale College Imprimis (2014): “The History and Danger of Administrative Law”, by Philip Hamburger

“There are many complaints about administrative law—including that it is arbitrary, that it is a burden on the economy, and that it is an intrusion on freedom. The question I will address here is whether administrative law is unlawful, and I will focus on constitutional history. Those who forget history, it is often said, are doomed to repeat it. And this is what has happened in the United States with the rise of administrative law—or, more accurately, administrative power…”

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