NCLA Commends Senator Tom Cotton for Bringing a Decades-Old SEC "Gag" Rule to Light

FOR IMMEDIATE RELEASE

 

WASHINGTON,  December 11, 2018-- Senator Tom Cotton pulled no punches in today’s Banking Committee Hearing on Capitol Hill when questioning SEC Chairman Jay Clayton about an unconstitutional 1972 SEC "Gag" Rule that the agency has used for decades to silence defendants.

“I think the SEC should probably reconsider it. It was passed at a time in 1972 when First Amendment precedent was much different and … more favorable to the government than frankly, it should have been … it’s quite over broad, it’s not at all narrowly tailored anymore and it can undermine other legitimate public interests,” said CottonHe also pressed Chairman Clayton about the SEC’s contradictory provisions on standard consent judgments and the constitutional infirmity of “gag” orders recognized by U.S. District Judge Jed Rakoff.

Senator Cotton specifically referenced an opinion piece written by NCLA Senior Litigation Counsel, Peggy Little, that appeared in the Wall Street Journal recently.

 “Senator Cotton’s concern for public interest in this matter is commendable. “When the SEC silences citizens after bringing enforcement actions against them, the public remains in the dark about this opaque form of regulation. SEC should stop leaving its targets speechless and should start allowing sunshine on how it brings the power of government to bear upon ordinary Americans.” —Peggy Little, NCLA Senior Litigation Counsel

The New Civil Liberties Alliance filed a Petition for Rulemaking earlier this Fall, asking the U.S. Securities and Exchange Commission to amend its controversial Gag Rule, 202.5e.

Click here to watch video of hearing.

About NCLA
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the administrative state. NCLA’s pro bono public-interest litigation and other advocacy strive to tame the unchecked power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org

Media Inquiries: Please contact Judy Pino, 202-869-5218 or email Judy.Pino@NCLA.legal

 

NCLA Files Suit Over Unconstitutional SEC Appointees

Group Urges Court to Stop ALJ from Hearing Raymond Lucia Sr. Case

WASHINGTON, Nov. 29, 2018 -- The New Civil Liberties Alliance, a nonprofit civil-rights organization and public-interest law firm, has filed a complaint seeking declarative and injunctive relief against the U.S. Securities and Exchange Commission in the U.S. District Court for the Southern District of California. NCLA represents Ray Lucia(pronounced "loo-chee-aa") and his former company. The suit seeks to prevent these Plaintiffs from being compelled to submit—yet again—to a proceeding before an unconstitutional Administrative Law Judge (ALJ) at the SEC. NCLA is also seeking a stay in that proceeding today from the ALJ.

Mr. Lucia suffered irreparable professional, reputational and financial harm from the first unconstitutional proceeding. He should not have to endure another years-long, constitutionally flawed ALJ proceeding before getting heard—and vindicated—on his constitutional objections.

"There is a human toll that is rarely considered in cases like this. Even though the SEC's prior decision has been set aside, Ray Lucia Sr.'s name and reputation are still tainted. Haling a citizen before an unlawful ALJ once is a grave breach of his constitutional rights. Doing it twice is unthinkable," said Peggy Little, NCLA Senior Litigation Counsel.

The SEC charged Mr. Lucia in 2012. Since then, he's endured six years of protracted litigation taking his case all the way to the U.S. Supreme Court -and winning- on the argument that the first ALJ he appeared before was improperly appointed. Rather than retrying the Lucia case before the Commission itself, the SEC is proceeding in front of another constitutionally defective ALJ. This time, the problem is that multiple layers of removal protection violate the Constitution's requirement that the President be able to remove all officers of the United States.

The Solicitor General's briefing to the Supreme Court in Lucia v. SEC flagged the President's inability to remove ALJs as constitutionally dubious and asked the Court to decide the issue then, which it declined to do (awaiting further input from lower courts). Despite this glaring constitutional problem, SEC persists in ignoring its due process obligation to bring enforcement actions in a lawful forum.

"The SEC could have brought its original enforcement proceeding in federal district court. Instead, it chose to bring the case before an unconstitutionally appointed in-house judge. And now it is violating Article II of the Constitution again. The process has become the punishment for Ray. Enough is enough," said Mark Chenoweth, Executive Director and General Counsel of NCLA.

About NCLA
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the administrative state. NCLA's pro bono public-interest litigation and other advocacy strive to tame the unchecked power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans' fundamental rights. For more information visit us online: NCLAlegal.org

Media Inquiries: Please contact Judy Pino, 202-869-5218 or email Judy.Pino@NCLA.legal

Lucia v. SEC. et al Complaint for Declaratory and Injunctive Relief

Raymond J. Lucia Companies, Inc. (RJL) and Raymond J. Lucia, Sr. (Mr. Lucia) for their complaint against the United States Securities and Exchange Commission (SEC or the Commission), Jay Clayton, in his official capacity as Chairman of the U.S. Securities and Exchange Commission, and Matthew G. Whitaker, in his official capacity as Acting United States Attorney General, allege as follows:

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U.S. v. Havis Press Release

FOR IMMEDIATE RELEASE

Deference to Commentary to the U.S. Sentencing Guidelines Must Stop

NCLA files amicus brief for rehearing en banc in U.S. v. Havis

The New Civil Liberties Alliance, a nonprofit civil-rights organization and public-interest law firm, filed an amicus brief supporting a petition for rehearing en banc in the case of United States v. Jeffery Havis before the U.S. Circuit Court of Appeals for the Sixth Circuit in Cincinnati. NCLA is particularly disturbed by the spreading practice of extending judicial “deference” to commentary to the United States Sentencing Guidelines, Stinson v. United States, a 1993 Supreme Court case, held Sentencing Commission commentary that interprets guidelines may be cited as binding authority when courts issue sentences for criminal defendants.

NCLA Executive Director and General Counsel, Mark Chenoweth released the following statement:

“Rarely does a court encounter a more compelling case for en banc review than U.S. v. Havis. Stinson deference is nothing more than a command that courts abandon their duty of independent judgment and assign weight to a non-judicial entity’s interpretation of the law. Although NCLA acknowledges that the Supreme Court has instructed courts to defer to this commentary when interpreting the text of the federal Sentencing Guidelines, this deference regime raises grave constitutional concerns that the Supreme Court has never considered nor discussed. Rehearing en banc is warranted to enable the Sixth Circuit as a whole to consider these oft-overlooked or disregarded constitutional concerns.”

NCLA requests that the petition for rehearing en banc should be granted.

About the New Civil Liberties Alliance
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the administrative state. NCLA’s pro bono public-interest litigation and other advocacy strive to tame the unchecked power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org

Media Inquiries: Please contact Judy Pino, 202-869-5218 or email Judy.Pino@NCLA.legal

Townhall: Will the Ninth Circuit Gut a Landmark Civil Rights Case?

By Michael DeGrandis

(Nov 14, 2018)

“Groucho Marx once resigned membership from the Friars Club quipping, “I don’t want to belong to any club that will accept me as a member.” Imagine Groucho’s dismay had the club been compelled to disclose his membership to the government! That is exactly what California’s attorney general is doing by requiring 501(c)(3) charities to divulge their donor or member lists—and the Ninth Circuit appears poised to let him get away with it.”

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Forbes: Florida Voters Join Chevron Revolt And Strike A Blow Against Judicial Bias 

By Mark Chenoweth

(Nov 8, 2018)

“What has already been a very good year for Chevron reform just got even better. By rejecting officially sanctioned judicial bias, Florida voters furthered a positive trend that has turned 2018 into the year of the Chevron revolt. With the passage of Amendment 6, the Sunshine State became the fourth state this year to reject rules that require judges to abandon their duty of judging in favor of legal interpretations made by government bureaucrats.”

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Florida Record: Coral Gables' use of license plate readers goes against Constitution, New Civil Liberties Alliance attorney says

(November 1, 2018)

“Coral Gables resident Raul Mas Canosa is suing the city and the state in a complaint that alleges he has been followed for years through the use of the state's license plate readers, and his attorney believes his client's constitutional rights have been violated. 

"If you look at the way the city initially envisioned the license plate reading program, it was clear that their original consideration was for a 30-day retention program, and because of the cover that was given by the administrative agencies, they changed that to three years of data retention," Mas Canosa's attorney, Caleb Kruckenberg with New Civil Liberties Alliance (NCLA), told the Florida Record.”

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Opinion: Janice Rogers Brown-The Attorney General America Needs

DAILY CALLER

By, Philip Hamburger

(October 31, 2018)

“If Jeff Sessions steps down as attorney general, who will replace him?

This question is on the president’s mind, according to a recent Wall Street Journal report, and among all the persons being floated as potential replacements, one stands out: retired D.C. Circuit Court Judge Janice Rogers Brown.

There are reasons to admire each of the rumored candidates for the position — and its current occupant. They all have distinguished themselves in their service to this country. But our nation now needs more than that. Over the past century, the courts have eroded the Constitution and its freedoms, and attorneys general have too often seized the opportunity for expanded federal power.”

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NCLA Files Petition with SEC to Amend Truth-Suppressing 'Gag' Rule

Commission's Settlement Practice Restricts Free Speech

“WASHINGTON, Oct. 30, 2018 /PRNewswire/ -- The New Civil Liberties Alliance (NCLA) today filed a petition asking the U.S. Securities and Exchange Commission to amend its controversial "Gag" Rule, 202.5(e). Adopted in 1972, SEC uses its Gag Rule to require settling parties to agree that they will never make any public statement that either directly or indirectly questions the accuracy of any allegations made in the SEC's complaint—even when the agency's allegations are false.”

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Miami Herald: Gables resident sues city over ‘Big Brother’ surveillance of cars on the street

(October 26, 2018)

“A Coral Gables resident is suing the “City Beautiful” over a license plate reader system that law enforcement officials say captures data on almost every vehicle that enters or leaves the city. The plaintiff, Raul Mas Canosa, says the collection and retention of vehicle movement data by license plate readers is a violation of constitutional rights to privacy.”

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Government Technology: Resident Sues Florida City Over License Plate Readers

(October 26, 2018)

The plaintiff alleges the collection and retention of vehicle movement data by the system is a violation of the right to privacy.

“A resident of Coral Gables, Fla., is suing the “City Beautiful” over a license plate reader system that law enforcement officials say captures data on almost every vehicle that enters or leaves the city. The plaintiff, Raul Mas Canosa, says the collection and retention of vehicle movement data by license plate readers is a violation of constitutional rights to privacy.”

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CBS Miami: Local Man Suing City Of Coral Gables Over License Plate Reading Cameras

(October 25, 2018)

“Automatic license plate recognition cameras have been in South Florida for years.

Police consider them a useful crime fighting tool.

But now they are being called into question over how the data collected is eventually being used.

“I think we need to wake up and realize our privacy is important,” said Raul Mas Canosa, who is suing the city.

Camera clusters, such as one across from the University of Miami on US1, are scattered throughout Coral Gables.”

Click here to read more

Miami New Times: Coral Gables Resident Sues Florida Over License-Plate Readers

(October 23, 2018)

SOURCE: Miami New Times

“In the seven years since Coral Gables began installing automatic license-plate readers, resident Raul Mas Canosa estimates the city has captured images of his car "thousands of times." It's a reasonable guess: By the end of the year, the City Beautiful is on track to scan more than 30 million license plates despite having a population of only 50,000.”

Click here to read more

Fox News: Florida man claims license-plate readers let cops know your 'daily routine' in suit

(October 23, 2018)

“A Florida man earlier this month filed a lawsuit against his city and its law enforcement, claiming that its use of license-plate-reading technology is unconstitutional, The Miami New Times reported.

Raul Mas Canosa, a Coral Gables resident, claimed in a lawsuit filed Oct. 5 that Coral Gables operates 30 cameras around the city and shares its data with at least 80 law enforcement agencies.”

Click here to read more

NCLA Sues City of Coral Gables, Florida Calling Its Use of Automated License Plate Readers 'Nakedly Unconstitutional'

WASHINGTON, Oct. 23, 2018 /PRNewswire/ -- The New Civil Liberties Alliance (NCLA) filed a lawsuit against the City of Coral Gables, Florida; the Florida Department of State (FDOS); and the Florida Department of Law Enforcement (FDLE), on behalf of Gables resident Raúl Mas Canosa, citing the city's Automated License Plate Readers (ALPRs) as a violation of Florida law and Floridians' Fourth Amendment rights to privacy.

New Civil Liberties Alliance Litigation Counsel, Caleb Kruckenberg:
"The City's ALPR system is nakedly unconstitutional. The FDLE never issued formal administrative rules, but rather gave law enforcement carte blanche permission to use ALPR systems, whenever and however it wants. Agencies are supposed to implement the law—not make it—and allowing these agencies to govern themselves subverts the democratic process entirely."

NCLA takes issue with the collection and storage of sensitive license plate information without reasonable limits on the scope of data collected or its use. Coral Gables uses more than 30 ALPR devices located at major intersections and other strategic points around the city, and police estimate that by the end of 2018 the department will have scanned close to 30 million license plates.

Raúl Mas Canosa, Plaintiff
"I am not opposed to modern technology being used to safeguard our community and identify and capture criminals. Unfortunately, the system that Coral Gables has implemented does not discriminate between innocent citizens and lawbreakers."

The Fourth Amendment to the United States Constitution forbids police from constantly monitoring a vehicle's movements over time without first obtaining a warrant based on probable cause. Just as significantly, Article I, Section 23 of the Florida State Constitution protects the 'right of privacy' of innocent citizens and limits the State's collection and use of private information without first making a showing of compelling government interest. This means that tracking all vehicle traffic for years with an ALPR system and then allowing law enforcement to pore over the captured data without any individualized suspicion is unlawful.

NCLA demands the FDOS and the FDLE end these unchecked and illegal uses of ALPR cameras and that state courts take action to restore the balance of power to protect the residents of Florida.

About the New Civil Liberties Alliance
The New Civil Liberties Alliance (NCLA) is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional rights from violations by the administrative state.  NCLA strives to tame the unchecked power of state and federal agencies through pro bono public-interest litigation and spur a new civil liberties movement that will help restore Americans' fundamental rights.

Media Contact:
Judy Pino
202-869-5218 
media@NCLAlegal.org

https://www.NCLAlegal.org

SOURCE New Civil Liberties Alliance

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Regulatory Transparency Project: Free Lunch Podcast Episode 29 – Arizona Dumps Deference: The Beginning of the End for Chevron?

Philip Hamburger discusses with the Regulatory Transparency Project

Listen Now

“We live in a system where regulators make rules, investigate alleged violations of the rules, and then adjudicate those violations before an Administrative Law Judge who is a member of the agency. When agency decisions are appealed to the traditional court system, judges are obligated to “defer” to the agency on both its legal and factual conclusions. Many opponents of this scheme have criticized the system for “placing a thumb on the scales of justice” by encouraging judicial bias. Many of the same critics assert that the current system of administrative law offends the rule of law, due process, and separation of powers. In April 2018, Arizona passed first-of-its-kind legislation, developed by the Goldwater Institute, that eliminates this legal deference in state courts. This teleforum call will explore this new law, discuss how it might change state agency rulemaking and enforcement, and also examine how the law might address concerns regarding judicial bias and other issues. Importantly, this program will also consider whether this legislation can serve as a model for the rest of the country, and the federal government.”