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The Conservative Caucus Podcast #11 – Mark Chenoweth

Published: August 20, 2025
Network: The Conservative Caucus
Analysis: Conservative Caucus President Jim Pfaff

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The battle against administrative state overreach has reached a critical turning point in American jurisprudence. Mark Chenoweth, President and Chief Legal Officer of the New Civil Liberties Alliance (NCLA), joins Jim Pfaff to discuss how federal agencies have replicated the exact tyrannies that sparked the American Revolution—and how recent Supreme Court victories are beginning to restore constitutional limits on bureaucratic power.

Topics Covered

• The New Civil Liberties Alliance: Fighting the Administrative State
• From Colonial Grievances to Modern Bureaucracy
• Seven Critical Areas of Administrative Abuse
• Overturning Chevron: A Landmark Victory
• Fourth Amendment Violations in the Digital Age
• The Due Process Crisis in Administrative Tribunals
• Presidential Authority and Agency Independence
• Key Takeaways

The New Civil Liberties Alliance: Fighting the Administrative State

Founded eight years ago by Columbia Law School professor Philip Hamburger, the New Civil Liberties Alliance emerged from a profound realization: the modern administrative state has systematically violated the same civil liberties that the Constitution was written to protect. Hamburger’s 2014 book, Is Administrative Law Unlawful?, traced how contemporary federal agencies mirror the oppressive practices of King George III that colonists fought against in 1776.

“Philip was familiar from his religious liberty work with groups like the Becket Fund,” Chenoweth explains. “Their experience was that civil liberties weren’t really being violated by legislators. What they were seeing in the vast majority of their cases was civil liberties being violated by bureaucrats.”

From Colonial Grievances to Modern Bureaucracy

The parallels between colonial America and today’s regulatory environment are striking. When most Americans think about the Revolution, they focus on taxation without representation. But as Pfaff and Chenoweth discuss, the Declaration of Independence contains a much broader indictment of executive overreach.

“If you read through the Declaration of Independence, you’ll see Thomas Jefferson and the other authors have a laundry list of complaints,” Chenoweth notes. “Among those are—and I wish I had it in front of me because the quote is great—to create offices to harass our citizens and eat out their substance. Well, gosh, that sounds a lot like the modern administrative state, doesn’t it?”

The founders also complained about the denial of trial by jury, with colonists being tried in admiralty courts or hauled to London rather than receiving justice in their own communities. Today’s administrative agencies employ strikingly similar tactics, conducting proceedings in their own tribunals where defendants lack basic constitutional protections.

“England, which is the foundation of common law that our legal system was based off of—that they always had done so well and had developed so fully—they totally threw away for the colonists for political reasons. And that also is a similarity to what’s happening today.”
— Jim Pfaff, President, The Conservative Caucus

Seven Critical Areas of Administrative Abuse

NCLA has identified seven specific pathologies of administrative state overreach that form the core of its litigation strategy. Understanding these areas reveals the breadth of constitutional violations occurring daily across federal agencies.

1. First Amendment Violations

Federal agencies routinely impose speech bans, speech mandates, and licensing requirements that violate the First Amendment. A prime example is the Securities and Exchange Commission’s gag rule requiring parties who settle enforcement actions to never dispute any charges in the original complaint—even charges the SEC knows are false and could never prove in court.

“This is even though by the time you get to a settlement, you know, and the SEC knows that some of the things, maybe everything, but at least some of the things in that complaint aren’t true and they could never possibly prove them in court,” Chenoweth explains. “And yet the SEC insists that you never dispute the items in that original complaint as a condition of settlement.”

2. Article II Overreach and Non-Delegation

The Constitution’s first line after the preamble states that “all legislative power” resides with Congress. Yet agencies routinely exceed their statutory authorization, effectively writing laws without congressional approval. NCLA’s victory in Cargill v. Garland exemplifies this issue.

The Bureau of Alcohol, Tobacco, and Firearms attempted to ban bump stocks by redefining them as machine guns under a 1986 statute—despite bump stocks not existing in 1986 and not meeting the statutory definition of automatic weapons. After five years of litigation, the Supreme Court agreed with NCLA that ATF had unlawfully rewritten the statute.

3. Judicial Deference Doctrines

Perhaps the most significant area of administrative state overreach involved what NCLA calls the “dirty dozen deference doctrines”—court-created rules requiring judges to defer to agency interpretations of law rather than exercising independent judgment.

The granddaddy of these was Chevron deference, which for 40 years required courts to accept any “reasonable” agency interpretation of ambiguous statutes. NCLA’s landmark victory overturning Chevron in the Loper Bright case represents a watershed moment in restoring judicial independence.

Overturning Chevron: A Landmark Victory

The elimination of Chevron deference fundamentally changes the landscape for challenging administrative state overreach. For four decades, this doctrine tilted the playing field dramatically in favor of federal agencies, making it nearly impossible for citizens and businesses to successfully challenge agency interpretations in court.

“The way I’ve talked about it is it levels the playing field for all of our future litigation against the administrative state,” Chenoweth emphasizes. “That’s really the big advantage. We’re not fighting uphill battles all the time anymore now that Chevron deference has gone away.”

Under Chevron, judges abdicated their constitutional duty to interpret the law, instead asking only whether an agency’s interpretation was “reasonable.” This violated the fundamental separation of powers by allowing the executive branch to effectively decide the meaning of laws it was charged with enforcing—acting as both prosecutor and judge.

Fourth Amendment Violations in the Digital Age

Administrative agencies have developed numerous workarounds to avoid obtaining search warrants as the Fourth Amendment requires. They issue civil investigative demands, subpoenas, and other requests that invade privacy without establishing probable cause before a neutral magistrate.

One of NCLA’s most troubling cases involved the IRS and cryptocurrency. Rather than using “John Doe warrants” to obtain names and then determine which individuals hadn’t paid taxes, the IRS demanded that Coinbase turn over approximately 14,000 complete financial records—including those of people who had properly declared and paid taxes on their cryptocurrency.

“The thing about cryptocurrency in particular, as you may know, once the government has your key, your blockchain key, once it knows your identity, it’s not just a matter of being able to track all of your past transactions, it can track all of your future transactions because they’re all public in the blockchain,” Chenoweth explains. “Turning over all those records to the government is a complete and utter destruction of people’s financial privacy.”

The Consolidated Audit Trail: Mass Surveillance Without Warrant

Perhaps the most egregious Fourth Amendment violation NCLA is currently challenging involves the Securities and Exchange Commission’s Consolidated Audit Trail (CAT)—a massive database collecting stock transaction information on over 150 million Americans without a warrant and without congressional authorization.

“Every single American who has engaged in a stock transaction in the last year, your information has been collected by the federal government without a warrant. And it’s worse than that—Congress never authorized this.”
— Mark Chenoweth, President, New Civil Liberties Alliance

The SEC created this database under the Obama administration following the 2010 flash crash, claiming they needed more transparency to explain market phenomena and catch insider trading. But as Chenoweth points out, the fact that something makes law enforcement easier doesn’t justify violating the Constitution.

“It probably does make it easier to find criminal behavior. Absolutely. But so would turning over all of our emails to the government make it easier for them. That doesn’t mean that the government has a right to that information.”

The Due Process Crisis in Administrative Tribunals

When Americans appear before administrative agency tribunals, they lose virtually every protection guaranteed in federal court. There’s no separation between prosecutor and judge, no federal rules of evidence, no right to Brady material (exculpatory evidence in the government’s possession), and limited ability to present witnesses.

Chenoweth shares a disturbing example from an SEC case where the agency possessed evidence proving their client hadn’t committed the alleged violation—but refused to turn it over. In another case, when a client’s customers wanted to testify in his defense, the SEC threatened to demand five years of their books and records if they proceeded with their testimony.

“In any federal district court, I don’t care if you’re talking an Obama judge, Biden judge, a Bush judge, or a Trump judge, any federal district court in America, that is witness intimidation,” Chenoweth states. “And not to no one’s surprise, those witnesses disappeared.”

Trading Roles: When Prosecutors Become Judges

At the National Labor Relations Board, NCLA discovered an even more troubling practice: prosecutors and administrative judges trade roles, with the same individuals serving as prosecutor one day and judge the next.

“We were talking to the prosecutor in the case and he just mentioned that, ‘Well, I can’t do that because I’m sitting as a judge that day,'” Chenoweth recalls. “How is that possibly due process when you’ve got people who share the same office trading off being prosecutor and judge? Do you think there isn’t back scratching going on in that situation?”

This systematic denial of due process represents administrative state overreach at its most fundamental level—the deprivation of the right to a fair hearing that has been recognized since Magna Carta.

Presidential Authority and Agency Independence

The question of whether the President can remove principal officers at “independent” agencies has emerged as one of the most consequential constitutional battles of the Trump administration. In Boal v. Trump and related cases, former agency commissioners are fighting to retain their positions despite presidential removal.

The Consumer Product Safety Commission case illustrates the absurdity of the current system. Under the statutory structure, three Democrats controlled the agenda at a federal agency during a Republican presidency. As Chenoweth asks: “Independent of what? Independent of who? Independent of the president. No, that’s not how the executive branch works. Nothing’s independent of the president.”

The legal battle turns on whether these commissioners are “principal officers” (whom the President can remove at will) or “inferior officers” (who may have statutory removal protections). It also challenges the 1930s-era Humphrey’s Executor decision, which claimed the Federal Trade Commission exercised “quasi-legislative” and “quasi-judicial” power rather than executive power.

“I don’t think that was true in the mid-1930s. I think there was some executive power going on back then too. Even if there wasn’t, then there’s definitely executive power occurring today at the FTC, at the NLRB, at the CPSC, all these agencies. The president needs to be able to control the executive power because there’s only one president.”
— Mark Chenoweth, President, New Civil Liberties Alliance

The Supreme Court has already intervened in these cases, staying lower court orders that would have reinstated fired commissioners. This signals the Court’s receptiveness to arguments that presidential control over executive branch officers is constitutionally required.

The US Attorney Controversy

A related issue involves district judges appointing acting US Attorneys when the President’s nominees haven’t been confirmed—and in some cases, appointing Democrats rather than the President’s chosen nominees. While a statute allows judges to make such appointments, Chenoweth argues this violates the Constitution’s structure.

“I don’t think that the Constitution was talking about one branch appointing officers in another branch,” he explains. “Do you think that the Secretary of the Treasury can appoint Chief Justice Roberts’ law clerks? That would be bizarre. And that’s essentially what’s happening here—you’ve got the district judges appointing the president’s US attorneys in the Department of Justice.”

Key Takeaways

1. Historical Parallels – The administrative state has replicated the exact violations of civil liberties that sparked the American Revolution, including denial of jury trials, warrantless searches, and harassment by unaccountable officials.
2. Chevron Overturned – NCLA’s landmark Supreme Court victory eliminating Chevron deference levels the playing field for future litigation, requiring judges to independently interpret laws rather than defer to agency interpretations.
3. Seven Areas of Abuse – Administrative state overreach manifests in First Amendment violations, exceeding statutory authority, judicial deference, Fourth Amendment violations, due process denials, guidance abuse, and non-statutory spending conditions.
4. Fourth Amendment Crisis – Federal agencies collect massive amounts of personal information without warrants, including the SEC’s Consolidated Audit Trail containing stock transaction data on 150 million Americans without congressional authorization.
5. Due Process Denied – Administrative tribunals lack basic protections available in federal court, including separation of prosecutor and judge, rules of evidence, Brady material, and meaningful witness testimony.
6. Presidential Control – The Constitution’s structure requires presidential authority to remove principal officers at executive branch agencies, including so-called “independent” agencies that currently operate beyond presidential control.
7. Qualified Immunity Reform – While qualified immunity may make sense for police officers making split-second decisions, it should not protect bureaucrats who have ample time to consult lawyers before taking actions that violate constitutional rights.
8. Reason for Optimism – Recent Supreme Court victories, increased public awareness following COVID-19 overreach, and the current administration’s focus on reining in agencies provide genuine hope for restoring constitutional limits on administrative power.

The fight against administrative state overreach represents one of the most important constitutional battles of our time. As Mark Chenoweth and the New Civil Liberties Alliance demonstrate through their litigation victories, the path back to constitutional government requires both strategic legal challenges and public understanding of how far we’ve strayed from the founders’ vision. To learn more about NCLA’s work or support their mission, visit nclalegal.org.

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About The Conservative Caucus:
The Conservative Caucus is a grassroots public policy action organization, formed in 1974. Headed by President Jim Pfaff, the Caucus is committed to advancing free enterprise, limited government, and traditional values.

Originally broadcast August 20, 2025 on The Conservative Caucus.