Ray Lucia's battle against the powerful Securities and Exchange Commission begins again

"Financial planning guru Ray Lucia is continuing his David vs. Goliath battle against the U.S. government — and it is proving to be the fight of his life.

Lucia went all the way to the U.S. Supreme Court to challenge the constitutionality of a Securities and Exchange Commission disciplinary action against him — for statements made in his retirement investment seminars — and he won last June.

Now, the San Diegan is facing the same uphill battle again."

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Sec. Toulouse-Oliver Delays Merits of Case With a Motion to Stay in NCLA’s Petition for Writ of Mandamus

WASHINGTON, DC, February 1, 2019 — Secretary of State Toulouse Oliver filed a Motion to Stay the Proceedings in the Supreme Court today while, in her words, “the legislature considers legislation with a direct bearing on the claims at issue” in this case.  NCLA filed a Petition for a Writ of Mandamus with the Supreme Court of New Mexico in December asking the Justices to vacate New Mexico’s 2017 “Campaign Finance Rule” (CFR). NCLA believes the CFR violates the separation of powers guaranteed to the state’s citizens in Article III, Section I of the New Mexico Constitution.

“This is Secretary Oliver’s second motion to delay consideration of the merits of this case. It appears that she is trying desperately to avoid defending her violation of the New Mexico Constitution’s separation of powers in front of the Supreme Court.  The Petitioners will file an opposition to this Motion in due course.”—Mike DeGrandis, NCLA Senior Litigation Counsel 

The Secretary must file a response to the petition by February 8, 2019.

For Media Inquiries contact: Judy Pino, 202-869-5218

Time for SCOTUS to Stop Deferring to Federal Agencies

WASHINGTON, DC, January 31, 2019— The New Civil Liberties Alliance today filed an amicus curiae brief before the U.S. Supreme Court in the Kisor v. Wilkie case. Although the facts of the case involve a dispute over veterans’ benefits, the question before the Court is whether two of its precedents, Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., should be overturned.

In these cases, the Supreme Court developed what has come to be known as the Auer deference doctrine, which holds that courts must defer to a federal agency’s reasonable interpretation of its own ambiguous regulations. NCLA is particularly disturbed by how the regime of Auer deference—like other agency-deference doctrines—requires federal judges to defer to another entity’s interpretation of the law.

NCLA’s brief explains that Auer deference blatantly violates the Constitution in two separate ways. First, Auer requires judges to abandon their duty of indepen­dent judgment, in violation of Article III and the judicial oath. Second, Auer violates the Due Process Clause by commanding judges to exhibit bias in favor of the legal positions of administrative agencies—even when those agencies are litigants before the court. And, of course, displaying bias in favor of the government also entails showing bias against whomever is litigating against the government agency, thereby depriving that litigant of due process.

“For more than two decades, Auer deference has deprived innumerable litigants of due process. A decision from the Court that fixes this problem prospectively will be welcome, but to truly make up for the wrong this doctrine has caused, the Court should fully acknowledge the constitutional defects inherent in Auer deference. The Court owes it to those negatively impacted by Auer to candidly concede that the Auer doctrine violated both the independence of the judiciary and the Fifth Amendment guarantee of due process.” Mark Chenoweth-NCLA Executive Director and General Counsel

Defenders of Auer will no doubt try to salvage the doctrine by invoking stare decisis—and act as though there is some binding legal obligation to adhere to this precedent, notwithstanding its gross unconstitutionality. But where the Court is reconsidering the constitutionality of a doctrine it created, it cannot attribute much precedential weight to that case without making it impossibly difficult for the Court to correct its own past Constitutional transgressions.

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 public-interest litigation and other pro bono advocacy strive to tame the unbridled 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 Submits Comment in Objection to Proposed ED Rule

WASHINGTON, DC, January 31, 2019 — The New Civil Liberties Alliance (NCLA) today submitted a Comment to the Department of Education’s proposed rule, Nondiscrimination on the Basis of Sex in the Education Programs or Activities Receiving Federal Financial Assistance. NCLA argues that the Department (ED) lacks the constitutional authority to issue the rule and may not lawfully require educational institutions to adopt the adjudicatory procedures outlined in it.

NCLA condemns any form of sexual harassment. At the same time, past attempts at regulation through guidance have denied due process to the accused and a fair forum for both parties to seek justice. Unfortunately, the Department’s attempt to correct its past oversight abuses also exceeds its authority.

Instead of issuing this invalid rule, NCLA asks that ED acknowledge the impropriety of its past actions and allow each educational institution to determine the best process for addressing sexual harassment on its campus.

“While NCLA appreciates the Department’s effort to correct past abuses of departmental oversight, ED does not have the power to issue this proposed rule.” Mark Chenoweth-NCLA Executive Director and General Counsel

“No institution should ever feel pressured to adopt unconstitutional rules over the threat of losing federal funding.” Caleb Kruckenberg, NCLA Litigation Counsel

NCLA advises that all agencies and agency heads must examine whether their modes of rulemaking, adjudication, and enforcement comply with the Administrative Procedure Act (APA) and with the Constitution.

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 public-interest litigation and other pro bono advocacy strive to tame the unbridled 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 Marks One-Year Anniversary of DOJ's 'Brand Memo' with Avalanche of Anti-Guidance Petitions

WASHINGTON, DC, Jan. 25, 2019 -- The New Civil Liberties Alliance today filed half a dozen Petitions for Rulemaking taking issue with the abusive, shortcut manner in which federal departments and agencies issue regulatory guidance. The Petitions ask each named department or agency to stop promulgating and enforcing guidance that purports to bind private parties with the force of law. The entities receiving today's petitions include: the Department of the Treasury, the Department of Labor, the Department of the Interior, the Department of Agriculture, the Federal Trade Commission, and the Consumer Financial Protection Bureau.

These latest anti-guidance petitions join a slew of others that NCLA has filed during the past six months. Together they mark the one-year anniversary of the "Brand Memo" issued by former U.S. Associate Attorney General Rachel Brand. The memo forms a key part of the Justice Department's internal reform of its guidance practices. ‎Specifically, the Brand Memo informed the rest of the Executive Branch that the Justice Department would no longer enforce other agencies' guidance documents when bringing affirmative civil enforcement actions.

NCLA believes that the attempted use of agency guidance documents to create rights or obligations that are binding on regulated third parties is wrong and unconstitutional. To rein in such abuses, NCLA has asked the Department of Justice to convert the Brand Memo into a formal rule barring the creation and enforcement of improper guidance.

In addition, NCLA proposes that all other federal agencies and departments should adopt similar formal rules barring them from issuing and enforcing improper guidance. To that end, NCLA has filed fifteen petitions so far and has plans to file more.

"In the year since the Brand Memo was released, most federal agencies have failed to take the hint. The Justice Department has sounded the death knell of unlawful guidance, and other federal departments and agencies must fall in line. ‎This is something federal agencies can do without help from Congress, and they owe it to the American people to stop issuing improper guidance and start abiding by the rule of law and the Constitution." —Mark Chenoweth, NCLA Executive Director and General Counsel

"Administrative agencies must commit to a future free from their past regulatory mischief. While the Brand Memo represented a positive step, it is just a non-binding policy statement. It is guidance about guidance, and it remains useful only so long as the agencies stay vigilant." —Caleb Kruckenberg, NCLA Litigation Counsel

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 public-interest litigation and other pro bono advocacy strive to tame the unbridled 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

SOURCE New Civil Liberties Alliance

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Federal Lawsuit Challenges SEC’s Lifetime Gag Order Policy

"The Cato Institute, based in Washington, says the policy serves to silence potential critics of the SEC’s vast civil enforcement powers, thereby violating First Amendment protections of free speech and a free press.

The policy is particularly problematic, the group says, when as a condition of accepting any civil settlement proposal as a means of avoiding trial, the mandatory perpetual gag orders can also mask agency wrongdoing."

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Grosse Ile uses cameras to track vehicle locations — and it's not alone

"An Electronic Frontier Foundation audit of automatic license plate recognition systems released in late November revealed that police in Grosse Ile have scanned 8.41 million license plates in 2016 and 2017. The location data picked up by the readers was then shared with additional databases on request. Of those scans, 99.92 percent belonged to drivers not suspected of any crime.

In Grosse Ile, a stationary plate reader sits on each of the two roads leading on and off the island. The readers read 97 percent of all plates passing them, according to police chief Joseph Porcarelli. License plate data is stored for 72 hours, after which it is purged, according to township supervisor Brian Loftus."

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Utah guns rights advocate sues Trump administration over federal bump stock ban

"SALT LAKE CITY — A Utah gun rights advocate is suing the federal government over a newly imposed ban on an accessory that modifies rifles to fire like automatic weapons.

Clark Aposhian, chairman of the Utah Shooting Sports Council, argues in the lawsuit that the Department of Justice and Bureau of Alcohol, Tobacco, Firearms and Explosives violated the Constitution in prohibiting a device known as a bump stock."

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Utah guns rights advocate sues Trump administration over federal bump stock ban

"SALT LAKE CITY — A Utah gun rights advocate is suing the federal government over a newly imposed ban on an accessory that modifies rifles to fire like automatic weapons.

Clark Aposhian, chairman of the Utah Shooting Sports Council, argues in the lawsuit that the Department of Justice and Bureau of Alcohol, Tobacco, Firearms and Explosives violated the Constitution in prohibiting a device known as a bump stock."

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NCLA: The Bump Stock Buck Must Stop with Congress, Not the President

WASHINGTON, DC, Jan. 17, 2019 -- Firearms instructor W. Clark Aposhian of Utah is a law-abiding citizen, but under the "Bump-Stock-Type Devices" Final Rule, on March 26th, he will become a felon subject to a 10-year prison sentence unless he destroys or surrenders his Slide Fire bump-stock device. The same is true for owners of the estimated 520,000 other bump-stock devices legally acquired over the last decade.

The New Civil Liberties Alliance filed a Complaint against Acting Attorney General Matthew Whitaker, the U.S. Department of Justice (DOJ), Acting Director Thomas Brandon of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and the ATF itself. The Complaint filed on behalf of Aposhian, would bar enforcement of the "Bump-Stock-Type Devices" Final Rule against him and similarly situated individuals in the District of Utah. NCLA also filed a request for a Preliminary Injunction today which seeks to stop the ban from coming into effect as scheduled.

Congress has never acted to outlaw these devices. In fact, as Senator Dianne Feinstein (D-CA) recently stated, "Until March 2018, ATF maintained that bump stocks could not be banned through administrative action." She also recognized that "Legislation is necessary" or any ban will not be "protected from legal challenges."

NCLA wholeheartedly agrees with Mr. Aposhian that DOJ has no constitutional or statutory authority to create new criminal laws. NCLA takes no position on bump-stock devices, as we proclaim no expertise on the various policy reasons given for banning them. But the wisdom of the policy is irrelevant to the impropriety of actions taken by DOJ and ATF. NCLA has brought this lawsuit to ensure that our nation's administrative agencies operate constitutionally, and that Congress takes responsibility for lawmaking.

"However well-intentioned, neither the President nor his Department of Justice can act by executive fiat to change the law. Congress—and only Congress—can convert lawful activity into unlawful activity. In this case, Congress has never prohibited the possession of bump-stock devices by statute, so this rule violates the Constitution." 
—Caleb Kruckenberg, Litigation Counsel, NCLA

"The Constitution does not allow lawmaking by shortcut. New criminal laws must be passed by both houses of Congress and signed into law by the President. That did not happen here. If the courts permit the Attorney General to get away with passing this rule, which turns half a million Americans into felons overnight, via a pathway that is not in the Constitution, nothing will stop a rogue attorney general from turning millions more law-abiding citizens into felons in the future."
—Steve Simpson, Senior Litigation Counsel, 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 public-interest litigation and other pro bono 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

Muzzled no more

"Are you a crypto entrepreneur who settled charges with the SEC for fear of drawn-out litigation? But you don’t think you actually did anything wrong?

Turns out you can’t tell us even if you wanted to.

When you settle charges with U.S. Securities and Exchange Commission, you become bound by the SEC’s decades-long “neither admit nor deny” policy, which hinders your ability to speak freely about the specifics of your case, and explicitly prohibits you from even implying  that the government’s allegations are without merit."

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NCLA Stands With Cato And IJ In Federal Lawsuit Against the SEC

WASHINGTON, DC, January 10, 2019 — The New Civil Liberties Alliance supports and commends the legal action taken by the Cato Institute and the Institute for Justice against the U.S. Securities and Exchange Commission’s unconstitutional ‘gag rule.’ In the federal lawsuit, IJ represents Cato as a publisher seeking to publish a former businessman’s book about what he went through being sued by the SEC. But like so many other defendants, the SEC’s 1972 gag rule silenced him. The rule not only prevents him from discussing the case—but it also prevents Cato from publishing his book.

As NCLA Senior Litigation Counsel Peggy Little’s recent opinion editorial states, “The gag rule violates a hornbook’s worth of legal doctrine: It is a prior restraint and a content-based restriction on speech. It serves no compelling government interest while employing the most restrictive means to accomplish its ends. It prohibits truthful speech, compels government-scripted speech, violates due process, impairs the First Amendment rights to petition government, and infringes the right of the public to hear criticisms of the government.”

NCLA filed a petition in October asking the SEC to amend its controversial ‘gag rule,’ and Senator Tom Cotton (R-Ark.) questioned SEC Chairman Jay Clayton on the issue at a Banking Committee hearing in December.

“Silencing Americans is just the tip of the iceberg when it comes to the administrative state’s power grabs. It will take an alliance of organizations like Cato, IJ, NCLA and others willing to represent the rights of Americans impacted by the expansion of the administrative state to end this injustice. We are up for that fight—and glad to have strong allies on our side.” – Mark Chenoweth, NCLA Executive Director and General Counsel

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