The New Civil Liberties Alliance (NCLA) is a public-interest law firm founded and led by Philip Hamburger, a professor at Columbia Law School. Hamburger describes it as an alternative to the ACLU, created because he was dissatisfied with how conservative and libertarian organizations were litigating to protect freedom. In his account, the organization was founded roughly four years before his October 2021 appearance on The Bob Zadek Show, and it operates with about twenty people in Washington, D.C. The New Civil Liberties Movement (2021)
Founding and mission
Hamburger, whom host Bob Zadek introduces as the founder and president of the organization, tells Zadek that he started it because he believed existing conservative and libertarian litigation could be done better. He characterizes the firm as “somewhat like the ACLU, only we actually try to defend your civil liberties.” The theory on which the organization is founded, in his words, is that administrative power is the greatest threat to civil liberties in the present era, and that it is therefore necessary to focus on pushing back against it. The New Civil Liberties Movement (2021)
In a June 2021 episode devoted to court packing, Zadek introduces Hamburger as the founder and president of the New Civil Liberties Alliance, which he describes as an important new organization founded to protect civil liberties effectively, and distinguishes it from the ACLU by name. Hamburger, given roughly a minute and a half at the end of that program, says the organization was founded about three or four years earlier to be an alternative to the ACLU—doing what the ACLU should have been doing but has not been doing. He lists the defense of procedural rights such as jury rights and due process, the defense of speech rights, and the defense of the right to govern ourselves through legislation rather than through administrative rules. He states that the organization pursues these ends through litigation, that it has a team of about twenty in Washington, D.C., and that in a few years it has had what he calls really great successes. Philip Hamburger on Court Packing (2021)
Litigation strategy and the SEC
Hamburger describes the firm’s approach as “strategic litigation” aimed at the types of power agencies hold over individuals. His principal example is the Securities and Exchange Commission. He says the SEC pursues insider trading not through an act of Congress but through rules of its own invention, prosecuting people in its own non-courts before so-called administrative law judges who, in his account, are not really judges, do not give you a jury, do not give you due process of law, and are quite biased. He states that NCLA’s litigation has been successful enough that the SEC has largely given up bringing its cases before those administrative law judges and is being forced into district court. The New Civil Liberties Movement (2021)
Hamburger also cites a district court case, Spartan Securities v. SEC, in which he says the judge instructed the jury that guidance is not binding as law, and the jury acquitted the client on 13 of 14 charges, the fourteenth being, in his phrase, small potatoes. He presents the outcome as part of a larger strategy to take down administrative tribunals he calls utterly unconstitutional. The New Civil Liberties Movement (2021)
In the same episode, Hamburger identifies SEC gag orders attached to settlements as one of the organization’s targets. He says that when the SEC settles a proceeding it adds a gag order by rule, requiring the defendant to promise not to talk about the case, and that this silences settling defendants and bars them from exposing unconstitutional conduct by the agency. He calls the practice grossly unconstitutional and a threat to the constitutional system as a whole. The New Civil Liberties Movement (2021)
The George Mason vaccine mandate case
In an August 2021 episode, Zadek introduces Jenin Younes as a lawyer with the New Civil Liberties Alliance, describing the firm as a relatively new public-interest law firm and recalling Hamburger as one of its founders, perhaps the founder. The episode concerns a lawsuit brought by Todd Zywicki, a professor at George Mason University’s law school, over the university’s COVID-19 vaccine mandate. Zadek describes Zywicki as the plaintiff and Younes as his counsel in the litigation, and says the university conceded the point rather than allow the case to establish a precedent—a result he calls a victory of sorts. Vaccine Mandates, George Mason, and the Bill of Rights (2021)
Zadek’s introduction states that Zywicki objected not as an anti-vaxxer but because he had had the COVID virus and therefore had, in Zadek’s framing, at least the same level of immunity as if he had been vaccinated, so that the danger the rule was meant to address did not exist. Zadek says the university did not care about the medical facts and treated the rule as a rule nobody gets to violate. The excerpt of the episode breaks off at the point where Zywicki begins to discuss the mandate itself, so the guests’ own account of the litigation is not available in the source. Vaccine Mandates, George Mason, and the Bill of Rights (2021)
Across episodes
The excerpts show no development in the treatment of the organization across episodes: it is discussed in the June 2021 court-packing episode, in the August 2021 vaccine-mandate episode, and in the October 2021 episode on the new civil liberties movement, with Hamburger giving substantially the same account of its founding, size, and purpose each time and adding the SEC litigation as a concrete example in the later appearance. Philip Hamburger on Court Packing (2021) Vaccine Mandates, George Mason, and the Bill of Rights (2021) The New Civil Liberties Movement (2021)
What the sources do not cover
The excerpts do not state the organization’s founding date, its funding sources, its full docket, or the outcomes of most cases beyond the SEC matters Hamburger describes and the George Mason litigation Zadek summarizes. They do not give the legal reasoning of any decision, the statutes or constitutional provisions on which the cases turned, or the names of the judges involved. The vaccine-mandate episode cuts off before its guests describe the litigation in their own words, and the court-packing episode gives the organization only the closing minutes of the hour.