The New Civil Liberties Alliance (NCLA) is a 501(c)(3) nonprofit organization dedicated to undermining the administrative state and reducing the ability of the federal government to administer laws. The organization was founded in 2017 by Philip Hamburger, a prominent legal scholar who has studied and written about the legality of administrative power.
The NCLA frames its legal advocacy as working on behalf of individual liberty and freedom and against an overbearing and irrational federal government. NCLA’s stated mission is “to protect constitutional freedoms from violations by the Administrative State.” Its mission statement goes on to say: “NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.” NCLA’s work protecting and restoring “fundamental rights” is focused on protecting the rights of corporations to pollute the environment, limiting workers’ ability to unionize, undermining worker safety in favor of corporate profits, and fighting for the right to own deadly bump stock devices for firearms.
Philip Hamburger is the founder and CEO of the NCLA. Hamburger is a scholar of constitutional law and its history and is the Maurice and Hilda Friedman Professor of Law at Columbia University. Hamburger is the author of a number of books, including Is Administrative Law Unlawful? and The Administrative Threat, in which he argues that the administrative state is unconstitutional. In his most recent book, Liberal Suppression: Section 501(c)(3) and the Taxation of Speech, Hamburger argues that IRS restrictions on the political speech of charitable organizations are unconstitutional. In 2017, the same year Hamburger founded the NCLA, The Bradley Foundation awarded Hamburger the Bradley Prize, an annual award that has been presented to myriad conservative figures, including John Bolton, Leonard Leo, Jeb Bush, and Betsy DeVos.
Mark Chenoweth is the president and general counsel of NCLA. Chenoweth previously served in leadership positions with Republican officials, including in George W. Bush’s Justice Department and as chief of staff to then-Representative Mike Pompeo. Chenoweth has also worked as in-house counsel for Koch Industries, the business owned by billionaire Charles Koch who provided NCLA with $2 million in funding in their first two years.
The New Civil Liberties Alliance was founded to attack and reduce the power of the administrative state. The so-called administrative state is a term used to describe the ability of administrative agencies to “create, adjudicate, and enforce their own rules.” When Congress passes laws, the interpretation and enforcement of those laws are often delegated to federal agencies, whose work is overseen by the president. Conservatives began targeting the administrative state through the judiciary more explicitly during the Trump administration and saw the bureaucratic expansion of the state as unconstitutional.
The NCLA writes on its website that “the Administrative State [is] an especially serious threat to constitutional freedoms. No other development in contemporary American law denies more rights to more Americans.” As it is designed, the administrative state allows agencies to be dynamic and respond to changing conditions and information. NCLA often sues agencies after they have adopted new regulations or reinterpreted statutes in order to better carry out the mission of the agency. One example is Allstates Refractory Contractors v. Walsh. The NCLA filed an amicus brief on behalf of Allstates in their lawsuit against the Occupational Safety and Health Administration. Allstates claimed the law that created OSHA was unconstitutional because Congress had only delegated the ability to set safety standards to the Secretary of Labor. Allowing the Secretary of Labor to set new safety rules permits the Department of Labor to quickly adapt to changing workplace conditions. Giving that power back to Congress would severely curtail the federal government’s ability to protect workers, the original mission of OSHA.
The process of Congress-delegated rule-making and oversight to a federal agency underpins much of the modern regulatory state. Eliminating it, as is the mission of the NCLA, would have dramatic consequences for Americans. Overturning the constitutionality of the administrative state would jeopardize the authority of the EPA and the environmental regulations that are enforced by the agency; the authority of the Consumer Financial Protection Bureau and its mission to protect Americans from predatory financial institutions; and the CDC’s ability to respond to public health emergencies; among others. The result would not, as the NCLA describes, be the expansion of civil rights to Americans. Instead, it would likely give large corporations the ability to pollute the environment, banks the ability to engage in predatory lending, and dangerous industries the ability to put profits above workplace safety.
Aposhian v. Garland was a challenge to a 2017 decision by the Bureau of Alcohol, Tobacco, Firearms, and Explosives to regulate bump stocks as machine guns, a reversal from a previous regulation. The new rule regulating bump stocks came after the tragic Las Vegas mass shooting. The New Civil Liberties Alliance filed a lawsuit to stop the new ATF rule from taking effect by arguing the ruling was overstepping the administrative authority granted to the agency by Congress. The lawsuit was dismissed by the Supreme Court in October 2022.
Cargill v. Garland was a second challenge to the ATF’s bump stock decision filed by the NCLA in Texas. NCLA made a similar argument as Aposhian v. Garland but found more success in this case. The Fifth Circuit Court of Appeals agreed with Cargill and NCLA that bump stocks are not machine guns and, therefore cannot be regulated under the federal law that prohibits individual ownership of machine guns. This ruling overturned a previous decision by the Fifth Circuit that upheld a ruling by the district court that had sided with the ATF. As of August 2023, the case was pending before the Supreme Court.
Cato et al. v. Miguel Cardona et al. was filed in response to President Biden’s Department of Education’s actions to assist individuals who had participated in the income-driven repayment plan in paying off their student loans. The department did this by counting months that borrowers were in forbearance toward the total needed for the loans to be forgiven in a “one-time payment count adjustment.” The Cato Institute and Mackinac Center are both nonprofits that participate in the Public Service Loan Forgiveness program and claimed that the adjustment would reduce the incentive to work for nonprofit organizations. The case was dismissed without prejudice by the district court in August 2023 for lack of standing.
NCLA filed an appeal in the Sixth Circuit challenging the district court’s ruling that Cato and the Mackinac Center lacked standing, in addition to the charge that the Education Department lacked the authority to unilaterally adjust the payment count.
NCLA, Cato, and the Mackinac Center are all members of the State Policy Network, a constellation of right-wing groups that work across the country to advance a conservative agenda. The coordination between SPN groups is common and appears to be a tactic of SPN to take similar actions to give the appearance of legal consensus.
In addition to filing cases, NCLA also files amicus briefs in cases that advance their mission.
New Civil Liberties Alliance filed an amicus brief on behalf of Loper Bright Enterprises, a herring fishing company based in New Jersey, after they sued the National Marine Fisheries Service. The Fisheries Service had recently implemented a new rule that required commercial fishing vessels to pay for government observers to track their catch and ensure they are not violating fishing regulations. In the spring of 2023, the Supreme Court agreed to hear arguments on Loper.
While the case clearly targets a fisheries rule, the decision could imperil Chevron deference, a long-standing Supreme Court precedent that compels federal courts to defer to administrative agencies when ruling on ambiguous statutes. The rule has been used by agencies to adapt to a changing regulatory environment without new laws explicitly passed by Congress. A ruling overturning Chevron would have vast consequences for the administrative state and particularly for environmental policy. In recent years, congress has been unable to pass new laws guiding the Environmental Protection Agency on how to best combat climate change. This has left the agency dependent on decades-old statutes to design new rules regulating the emissions of industries, vehicles, and power plants.
New Civil Liberties Alliance filed a series of amicus briefs on behalf of states that sued the Department of Treasury over a provision of the American Rescue Plan that limited the state’s ability to use ARP funds to offset state tax revenue. NCLA accused the federal government of overreach when the ARP attempted to legislate a state’s ability to tax its own citizens. The cases were originally filed by four states but the case was eventually combined into a single docket when it was appealed at the Eleventh Circuit.
The Eleventh Circuit affirmed that the ARP tax provision exceeded Congress’s authority to regulate the states under the Constitution.
New Civil Liberties Alliance filed an amicus brief in Refractory Contractors v. Walsh, a case that challenged the constitutionality of the Occupational Safety and Health Act, a federal law that created the Occupational Safety and Health Administration and established standards for workplace safety. The law was passed in 1970 and for more than fifty years, has acted to provide worker and workplace safety. The Sixth Circuit rejected Allstates’ argument against the constitutionality of OSHA and reaffirmed that the law was constitutional.
NCLA filed an amicus brief in BST Holdings v. Dept. of Labor, a case that was brought against the Labor Department following an OSHA rule that mandated COVID vaccination or a testing regimen for all businesses with more than 100 employees. OSHA withdrew the rule after the Supreme Court determined the rule was too broad.
NCLA filed an amicus brief in West Virginia v. EPA, a case that challenged the authority of the Environmental Protection Agency to regulate carbon emissions under the Clean Air Act. The conservative majority on the Supreme Court ruled that the EPA had overstepped its authority. Some members of the Court decried the ruling and accused conservative justices of ruling on a set of regulations that had been withdrawn with the sole purpose of cooling future EPA regulations.
In 2017, the year the New Civil Liberties Alliance was founded, the Charles Koch Foundation contributed $1 million to the new group accounting for over 60 percent of NCLA’s annual budget. In 2018, the Charles Koch Foundation contributed another $1 million to NCLA.
The New Civil Liberties Alliance is a member of the State Policy Network, a constellation of groups that advocate for conservative causes across the country. SPN has two types of members, affiliates which are state-based organizations, and partners, which are national organizations. NCLA is a partner organization. NCLA often works with other members of the SPN when filing lawsuits and amicus briefs.
For example, NCLA filed an amicus brief in West Virginia v. EPA, a high-profile case that attacked the heart of the administrative state. Other amicus filers included the Cato Institute, the Competitive Enterprise Institute, Americans for Prosperity, the Buckeye Institute, and America First Policy Institute, all of which are members of the State Policy Network.
The New Civil Liberties Alliance has a close relationship with Leonard Leo, the leader of a longstanding campaign to stack the federal bench with right-wing partisans and the architect of a vast network of dark money organizations. Two groups that Leo uses to distribute the dark money under his control are the 85 Fund (formerly known as the Judicial Education Project) and DonorsTrust, a right-wing donor-advised fund that distributes large sums to conservative groups and causes. The 85 Fund and DonorsTrust have contributed $4 million to the NCLA since 2018.
The Lynde and Harry Bradley Foundation and its associated Bradley Impact Fund are funded by a 19th century industrial fortune. Since its inception, the Bradley Foundation has given away more than $1 billion, much of it to conservative causes related to civil rights, voting rights, welfare, education, climate change, and labor, among other issue areas. From 2001 to 2010, the Bradley Foundation gave out more than $350 million in grants.
The Bradley Foundation has made three contributions to NCLA totaling $800,000.
|Charles Koch Foundation||$15,418||2021|
|Charles Koch Foundation||$15,308||2020|
|Charles Koch Foundation||$1,007,769.00||2019|
|Charles Koch Foundation||$1,000,000||2018|
|Charles Koch Foundation||$1,000,000||2017|
|Sarah Scaife Foundation||$300,000||2021|
|Sarah Scaife Foundation||$300,000||2020|
|Sarah Scaife Foundation||$300,000||2019|
|Sarah Scaife Foundation||$300,000||2018|
|Case Name||NCLA Position||Year filed|
|Aposhian v. Garland||NCLA sued on behalf of Aposhian over an ATF rule that classified bump stocks as machine guns.||2019|
|Cargill v. Garland||NCLA sued on behalf of Michael Cargill over an ATF rule that classified bump stocks as machine guns.||2019|
|Cato Institute, Mackinac Center for Public Policy v. Cardona||NCLA sued on behalf of Cato and the Mackinac Center over a Department of Education plan to count periods of forbearance as monthly payments when calculating student loans for individuals on income-based payment plans.||2023|
|Cerame v. Bowler||NCLA sued on behalf of Cerame, et al. over an amendment to the Rules of Professional Conduct for Connecticut barred attorneys that limited discriminatory speech by lawyers. NCLA accused the state of violating the First Amendment.||2021|
|Law Offices of Crystal Moroney v. CFPB||NCLA sued the CFPB on behalf of a law office that had been the subject of a CFPB investigation. NCLA claimed the CFPB was unconstitutional under Article II of the Constitution.||2019|
|Mark Changizi, et al. v. DHHS, et al.||NCLA sued DHHS on behalf of Mark Changizi, et al, a group of social media influencers who were targeted by Twitter for spreading misinformation about COVID-19.||2022|
|Cochran v. SEC||NCLA sued the SEC over its use of administrative law judges who were hired by the agency instead of appointed by the president. The Supreme Court ruled in NCLA’s favor and charged the president with appointing administrative law judges.||Ruled: 2023|
|Brianne Dressen, et al. v. Rob Flaherty, et al||NCLA sued the Biden administration over the administration’s efforts to limit the spread of Covid misinformation.||2023|
|FTC v. PPO||NCLA represented Precision Patient Outcomes after they were sued by the FTC over the marketing and branding of a supplement that was intended to be marketed as “Covid Resist” but was eventually sold under a different trademark.||2022|
|Hennis v. US||NCLA represented Todd Hennis in his suit against the EPA after the agency accidentally flooded part of his Colorado property with mining waste.||2021|
|Mackinac Center v. US Dept. of Ed.||NCLA sued the Department of Education over its suspension of student loan payments and interest during the pandemic. NCLA represented the Mackinac Center, a public policy think tank and nonprofit that participates in the Public Service Loan Forgiveness program, a program NCLA claims was harmed by the department’s policy.||2023|
|Case Name||NCLA Position||Year filed||Affiliated groups who also filed briefs||Outcome|
|Adir International v. Starr Indemnity and Liability Company||NCLA filed a brief with the Cato Institute on behalf of the petitioners and against the state of California. The NCLA and Cato brief requests a hearing on the case by the Supreme Court in an attempt to overturn a decision by the Ninth Circuit.||2021||The Supreme Court denied the writ of certiorari|
|CFPB, et al., v. Community Financial Services Association of America, Limited, et al.||NCLA filed a brief that argued the Consumer Financial Protection Bureau was illegally funded and was unconstitutional.||2023||Americans for Prosperity, Foundation for Government Accountability, America’s Future,||The case is scheduled to be heard by the Supreme Court.|
|Consumers’ Research, et al. v. FEC||NCLA filed a brief on behalf of the petitioners, Consumers’ Research, and argued that a program known as the Universal Services Fund was unconstitutional.||2023||Competitive Enterprise Institute, Free State Foundation||The Fifth Circuit ruled against NCLA and Consumers Research.|
|Darby Development Company, Inc., et al. v. United States||NCLA filed a brief on behalf of petitioners, who represented landlords who had been subject to the CDC’s pandemic-era eviction moratorium.||2022||The Supreme Court ruled in favor of landlords in Alabama Association of Realtors, et al. v. DHHS making the Darby case moot.|
|Loper Bright Enterprises v. Raimondo||NCLA filed a brief on behalf of petitioners who had sued the National Marine Fisheries Services over a rule that boat owners must pay for government observers to monitor their herring catch. NCLA argues the rule is unconstitutional and the courts should overturn the Chevron deference which dictates that courts should defer to agency interpretation of statutes.||2023||Pacific Legal Foundation, Goldwater Institute, Manhattan Institute for Policy Research, Foundation for Government Accountability, Liberty Justice Center, Cato Institute, Competitive Enterprise Institute, America First Policy Institute, National Right to Work Legal Defense & Education Foundation Inc., The Buckeye Institute,||The Supreme Court agreed to hear the case in the fall 2023 term.|
|American Hospital Association, et al. v. Xavier Becerra, et al.||NCLA filed a brief on behalf of the petitioners in their lawsuit against the Department of Health and Human Services. NCLA argued that the DC Circuit court had applied the Chevron deference incorrectly when the court accepted DHHS’ interpretation of the Drug Pricing Program.||2021||Pacific Legal Foundation, Americans for Prosperity Foundation, National Right to Work Legal Defense Foundation,||The Supreme Court overruled the DC Circuit Court in a 9-0 decision.|
|Americans for Prosperity Foundation v. Bonta||NCLA filed a brief on behalf of the petitioners, Americans for Prosperity, a fellow State Policy Network organization. NCLA argued the state of California did not have the ability to compel nonprofits to disclose their donors.||2018||Pacific Legal Foundation, Goldwater Institute, National Taxpayers Union Foundation, Judicial Watch, American Legislative Exchange Council, Institute for Free Speech, The Becket Fund for Religious Liberty, Cato Institute, Buckeye Institute, Freedom Foundation||The Supreme Court ruled in a 6-3 decision on partisan lines that the California law violated the donor’s First Amendment rights.|