Washington, D.C., June 08, 2026 (GLOBE NEWSWIRE) -- The New Civil Liberties Alliance filed an amicus curiae brief today in Floyd D. Johnson v. U.S. Congress. Johnson is a disabled veteran who wants an Article III court to hear his suit claiming that part of the Veterans’ Judicial Review Act of 1988 (VJRA) is unconstitutional. But NCLA is most interested in the underlying jurisdictional question. The U.S. Court of Appeals for the Eleventh Circuit applied the Supreme Court’s 2012 Elgin v. Dep’t of the Treasury decision to read into the VJRA an implied requirement that even a standalone constitutional challenge like Johnson’s must be heard first in a series of Department of Veterans Affairs administrative tribunals. That process could take many years before Johnson ever sees an Article III court.
NCLA points out that the text of the VJRA does not channel constitutional challenges to the statute itself to Executive Branch administrative tribunals (instead of Article III courts). Moreover, had Congress imposed such a requirement, it would be unconstitutional. As NCLA’s amicus brief argues, and the Supreme Court ruled in Jarkesy v. SEC in 2024, Congress cannot delegate—and the Executive Branch cannot wield—the judicial power of the United States. Rather, the Constitution vests that judicial power exclusively in Article III courts.
In a new argument, NCLA’s brief examines 150 years of history to show that Congress has always directed constitutional challenges to federal statutes to be heard in Article III courts, not in administrative tribunals. NCLA urges the Supreme Court to overrule its expansively worded 1994 holding in Thunder Basin Coal Co. v. Reich. In Thunder Basin, a coal strip-mining company challenged a safety regulation on the ground that it would violate the company’s statutory collective-bargaining rights under the National Labor Relations Act. The 150 years of statutory history channeling constitutional challenges of statutes to Article III courts was neither briefed nor argued by the parties, nor addressed by the Court. In an expansively worded opinion going far beyond the facts of the case before it, the Supreme Court required courts to find an implied intent by Congress to strip Article III courts of jurisdiction to hear any pre-enforcement challenge to a regulatory regime, if certain factors are met. The Thunder Basin Court failed to distinguish between standalone constitutional challenges to statutes and other types of pre-enforcement challenges to regulatory regimes (like the statutory challenge then before it).
The Elgin Court relied upon Thunder Basin’s broad wording to find implied jurisdiction-stripping in a case concerning a standalone constitutional challenge to another federal law. However, as in Thunder Basin, neither the parties nor the Elgin Court considered the 150 years of statutory history. NCLA urges the Court to do so now.
NCLA released the following statements:
“Between 1875 and 1988, Congress passed at least seven laws specifying what types of Article III courts could hear constitutional challenges to federal statutes. At times, such challenges were routed to three-judge courts, with direct appeal to the U.S. Supreme Court. But Congress has never channeled standalone constitutional challenges generally to administrative tribunals. Court decisions holding otherwise, like Thunder Basin and Elgin, have overlooked the statutory history, and should be overruled.”
— Alana Black, Senior Litigation Counsel, NCLA
“In NCLA’s Cochran case, the Supreme Court unanimously overturned several post-Thunder Basin precedents. As Justice Kagan explained, channeling constitutional claims into administrative agency tribunals made court review ‘too late to be meaningful[.]’ Both Congressional history and Supreme Court precedents affirm that administrative adjudicators lack competence to decide constitutional questions.”
— Peggy Little, Senior Litigation Counsel, NCLA
“Constitutional challenges to federal statutes belong in federal courts, not in administrative tribunals where ALJs lack constitutional law expertise. The Vesting Clause of Article III requires real judges to wield judicial power.”
— Mark Chenoweth, President and Chief Legal Officer, NCLA
For more information visit the amicus page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. 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.
Joe Martyak New Civil Liberties Alliance 703-403-1111 joe.martyak@ncla.legal