In this episode of Unwritten Law, NCLA Senior Litigation Counsel John Vecchione is joined by NCLA General Counsel Zhonette Brown to discuss Franey v. Washington Department of Fish and Wildlife, NCLA’s challenge to Washington State’s warrantless surveillance of commercial crabbers.

Washington requires commercial crabbers to install government-mandated tracking equipment on their boats. Once crab pots are placed in the water, the government tracks the vessel continuously—every minute—even when the crabbers are back at port or using their boats for activities completely unrelated to fishing. The resulting location information is stored in a government database.

John and Zhonette explain why NCLA argues this surveillance violates the Fourth Amendment and Washington State Constitution’s protections against unreasonable searches. They also discuss NCLA’s takings claims, the state’s requirement that crabbers place tracking equipment on their private property, and why the Washington Department of Fish and Wildlife lacks statutory authority to impose the mandate.

The episode also examines the broader implications of cheap, persistent electronic surveillance. As technology makes it easier for government to track people continuously and store that information indefinitely, John and Zhonette discuss why constitutional protections for privacy become more—not less—important.

NCLA has moved for summary judgment and is seeking to stop Washington from enforcing the tracking requirement against its clients.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione discuss the D.C. Circuit’s recent decision in Heroes Technology v. Consumer Product Safety Commission.

NCLA challenged a CPSC safety rule affecting infant support cushions. Congress created a streamlined rulemaking process for a limited category of “durable infant or toddler products,” including products such as cribs, playpens, and high chairs. But CPSC used that shortcut to regulate infant support cushions—and potentially thousands of other products that NCLA argues fall well outside the category Congress had in mind.

Mark, who served as a CPSC commissioner shortly after Congress created this expedited process, explains why he believes the agency has stretched the law far beyond its original purpose. He and John discuss the D.C. Circuit’s decision upholding the rule, what counts as a “durable” infant product, and why allowing regulators to bypass the normal rulemaking process can have consequences not only for the rule of law, but for consumer safety itself.

The conversation also explores regulatory creep, statutory interpretation, and an important lesson for Congress: when lawmakers leave statutory lists open-ended, agencies may find ways to expand exceptions far beyond their intended scope.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Senior Litigation Counsel Jacob Huebert to discuss NCLA’s amicus brief in Rogoff v. Trump, a case raising an unusual separation-of-powers question: Should federal judges be allowed to appoint the U.S. attorneys who prosecute cases in their own courts?

Federal law allows a district court to appoint a U.S. attorney when a temporary appointment expires without Senate confirmation. That practice dates back to the Civil War era. But NCLA argues that it conflicts with the Constitution’s separation of powers and the Appointments Clause. U.S. attorneys exercise substantial executive authority, deciding whom to prosecute, what charges to bring, and which enforcement priorities to pursue. NCLA argues that officials wielding that kind of power should not be selected by judges.

Jacob explains why NCLA argues U.S. attorneys are principal officers who must be nominated by the President and confirmed by the Senate—and why cross-branch appointments would remain constitutionally problematic even if they are considered inferior officers. The discussion also explores judicial independence, the appearance of impartiality when a judge appoints the prosecutor appearing before that court, and the practical consequences of a system increasingly reliant on temporary and court-appointed U.S. attorneys.

Mark, John, and Jacob also debate the other issue in Rogoff: whether President Trump had the authority to remove the court-appointed U.S. attorney. And they consider whether the court will ever reach the larger—and more interesting—constitutional appointment question.