The Fight Over Who Decides Constitutional Claims

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 Alana Black to discuss NCLA's amicus brief in Johnson v. United States Congress, a case asking whether constitutional challenges to federal statutes must be heard by Article III courts.

The case involves a disabled veteran challenging a federal law affecting veterans benefits. Rather than allowing his constitutional claims to proceed in federal district court, lower courts relied on the Supreme Court's Thunder Basin and Elgin precedents to route the dispute through an administrative review process.

Alana explains why NCLA believes those precedents are inconsistent with Congress's longstanding practice of ensuring that constitutional challenges to federal laws receive direct judicial review. Drawing on more than a century of statutory history, she shows how Congress repeatedly treated constitutional challenges as a special category of cases deserving heightened judicial attention—not administrative adjudication.

The discussion also explores the relationship between Thunder Basin, Axon, Cochran, Loper Bright, and Relentless, as well as broader questions about separation of powers, judicial authority, and whether administrative tribunals should play any role in deciding constitutional claims.