ZadekpediaFounding and mission
The New Civil Liberties Alliance is a non-profit public interest law firm based in Washington, D.C., founded by Philip Hamburger, a professor of law at Columbia Law School. Hamburger described founding it about four years before an October 2021 appearance, saying he was dissatisfied with the way conservative and libertarian organizations were litigating to protect freedom and thought it could be done better The New Civil Liberties Movement (2021). In a June 2021 episode, Bob Zadek introduced Hamburger as the founder and president of the organization, distinguishing it from the ACLU Philip Hamburger on Court Packing (2021).
Hamburger said the organization was founded to be an alternative to the ACLU, doing what the ACLU should have been doing but has not been doing Philip Hamburger on Court Packing (2021). The theory on which it is founded, he said, is that administrative power is the greatest threat to civil liberties in our era, and that it is therefore necessary to focus on pushing back against it The New Civil Liberties Movement (2021).
Litigation and strategy
Hamburger described the organization’s approach as strategic litigation aimed at the types of power agencies hold over individuals. He said it defends procedural rights such as jury rights and due process, speech rights, and the right to govern ourselves through legislation rather than through administrative rules, and that it does this through litigation Philip Hamburger on Court Packing (2021).
One example Hamburger gave concerned the Securities and Exchange Commission. He said the SEC goes after people who engage in insider trading — conduct he said the organization does not defend — but does so through its own invented rules rather than an act of Congress, prosecuting people in its own non-courts run by so-called administrative law judges who are not really judges, do not give you a jury, do not give you due process of law, and are quite biased. He said the organization’s litigation had led the SEC to largely give up bringing its cases before administrative law judges and to go into district court instead. He also described Spartan Securities v. SEC, in which he said the judge instructed the jury that guidance is not binding as law and the jury acquitted the client on 13 out of 14 charges The New Civil Liberties Movement (2021).
Hamburger said the organization had gotten the Supreme Court to reconsider its non-delegation doctrine and to reconsider its deference doctrines, in which the courts defer to administrative agencies, and that in a matter of a few years it had made enormous strides Philip Hamburger on Court Packing (2021). He said the organization has a team of about 20 in Washington, D.C. Philip Hamburger on Court Packing (2021), a figure he repeated in October 2021 The New Civil Liberties Movement (2021).
SEC gag orders and plea bargaining
In the October 2021 episode, Hamburger discussed plea bargaining as a common venue for conditions, saying that around 97% or more of federal charges get settled that way. He said plea bargains are not necessarily unconstitutional and can be useful, but that some conditions placed in them can be unconstitutional — for example, being required to give up a jury trial in a subsequent proceeding, or being asked to testify in another proceeding. He called the SEC’s practice, when it settles a proceeding, of adding a gag order by rule a particularly serious example: to get the settlement, a defendant must promise not to talk about the case. He said this silences defendants who settle and bars them from exposing unconstitutional conduct of the SEC, and called it grossly unconstitutional. He said some of those gag orders are one of the organization’s targets against the SEC The New Civil Liberties Movement (2021).
The George Mason vaccine mandate case
In August 2021, Zadek interviewed Todd Zywicki, a law professor at George Mason University’s law school, and Jenin Younes, a lawyer with the New Civil Liberties Alliance, about Zywicki’s challenge to the university’s COVID-19 vaccine mandate. Zadek described Zywicki as the plaintiff in the action and Younes as his counsel, and said the university conceded the point rather than allow the case to establish a precedent. He described the organization as a relatively new public interest law firm and recalled that Philip Hamburger had been one of its founders, perhaps the founder Vaccine Mandates, George Mason, and the Bill of Rights (2021).
Across episodes: the organization described by its founder
The New Civil Liberties Alliance is discussed in three episodes, and in each of the two featuring Hamburger he gives a version of the same account: an organization founded as an alternative to the ACLU, staffed by about 20 people in Washington, D.C., aimed at administrative power. What changes between June and October 2021 is the specificity of the litigation. In June, Hamburger cited the Supreme Court’s reconsideration of the non-delegation and deference doctrines as the measure of success Philip Hamburger on Court Packing (2021); by October he offered a concrete case, Spartan Securities v. SEC, and the SEC’s retreat from its administrative law judges, along with the gag-order practice as a target The New Civil Liberties Movement (2021). The August episode adds a third-party description of the organization as counsel in the George Mason matter rather than a founder’s account of its mission Vaccine Mandates, George Mason, and the Bill of Rights (2021).