President's report — December 20, 2013
Obamacare — Origination Clause Challenge
We filed this reply brief in Sissel v. Sibelius, our challenge to Obamacare based on the failure of the revenue-raising measure to originate in the House of Representatives, as required by the Constitution’s Origination Clause. The case will move to oral argument sometime in 2014.
Property Rights — Eminent Domain abuse
We filed this amici brief in 62-64 Main Street LLC v. Hackensack in the New Jersey Supreme Court on behalf of ourselves, National Federation of Independent Business, Institute for Justice and Ilya Somin. In this case, we are arguing that courts must carefully review a “blight” based redevelopment scheme before private property is taken for the benefit of other private entities.
Property Rights — Affordable Housing Exactions
We filed this opening brief in California Building Association v. City of San Jose. As explained in our blog, the City is imposing onerous requirements that builders of new residential units must subsidize 15% of their units for “affordable” housing (i.e. sell them for less than they are worth), or pay an exorbitant in-lieu fee to the City. Before the decision in Koontz, we thought this program was unconstitutional. After Koontz, we’re hoping it will be equally clear to the California Supreme Court.
Property Rights — Mining Rights
We filed this amicus brief in People v. Rinehart on behalf of ourselves and the Western Mining Alliance. This case deals with the uncompensated usurpation of unpatented mining claims by the State of California when it adopted a moratorium against all suction dredge operators.
Equality Under the Law Project — Freedom of Information
The California Supreme Court did issue a good decision in Sander v. State Bar of California. As described in our blog, this is the case brought by a UCLA Professor, Richard Sander. The professor has been doing some interesting research on the effect of college affirmative action admission programs on the affected student beneficiaries. The research, as explained in the book Mismatch, has been showing that students admitted to a college through affirmative action preferences are not nearly as successful as they would have been if they had been admitted to other schools solely on the basis of merit. Sander was rebuffed, however, by the State Bar when he sought data on bar passage rates that he could use to correlate to law school admission policies. The Supreme Court held that this information was subject to public information disclosure laws and that the State Bar had not yet made an adequate case for withholding the information. We had filed this amicus brief in support of Professor Sander.
Equality Under the Law Project — Government Contracting
We filed our amicus brief in the District of Columbia Circuit Court of Appeals in Dynatlantic v. United States Department of Defense. In this case, we’re arguing that disparity studies used to justify race and sex-based preferences in government contracts must satisfy standards established by the Supreme Court so that only qualified and willing subcontractors are compared to other qualified and willing subcontractors. In other words, apples must be compared to apples.
Economic Liberty Project — Freedom to be a Cabby
We filed our amicus brief in Ibrahim v. Milwaukee supporting the right of taxi cab drivers to lawfully enter the market. As noted on our blog, we’re suggesting that government should not give existing cabbies the right to prevent competition.
Environment — Greenhouse Gas Regulations
We filed this amicus brief in Utility Air Regulatory Group v. Environmental Protection Agency in the United States Supreme Court. This is the one case accepted by the Supreme Court challenging the EPA’s new regulatory initiative regulating greenhouse gas emissions of stationary sources. The problem with the regulation is that it is based on findings the EPA made for mobile source pollution (such as cars and trucks). But the Clean Air Act requires an entirely independent set of procedures for stationary sources. As explained in our brief, neither the structure nor the legislative history of the Clean Air Act supports the EPA’s distorted justifications for using mobile source regulations to regulate stationary sources.
Environment — Louisiana Wetlands
We submitted these comments to the Louisiana Department of Wildlife and Fisheries on behalf of ourselves and several landowners who are concerned about some proposed onerous regulations that will affect riparian landowners throughout the state. We are concerned that the proposed amendments unintentionally and illegally expand the Department’s jurisdiction over the timber industry and many other commercial activities, including home construction.
Free Enterprise Project — Right to Contract
We filed our amicus brief in Baltazar v. Forever 21. In this case before the California Supreme Court, an employee is trying to bring a class action lawsuit over an employment dispute, despite an express provision calling for individual arbitration as a way to resolve such disputes. As noted on our blog, we are supporting the policy favoring the application of the terms of written contracts that apply equally to both parties.
Free Enterprise Project — Yogurt to Yoga liability
The California Supreme Court denied review in Moradi v. Marsh, the infamous case where a California Court of Appeals held an employer may be liable for an accident caused by an employee, who used her car for some work-related duties. The employee had left work for the day and was heading into a yogurt shop before her yoga class when she had a collision with a motorcycle. Naturally, the motorcyclist sued her employer and the Court of Appeals said that was just fine. We filed this amicus brief urging review and describe the case more here.
Free Enterprise Project — Compelled Speech
The California Supreme Court issued this adverse decision in Beeman v. TDI Managed Care. As noted here, at issue was whether state could compel pharmacies compile and publish information on pharmacy fees. The Court found that such compelled statistical-based commercial speech was not protected by the First Amendment. There was a strong dissent which argued that the compelled speech here did not serve the salutary purposes of other disclosure laws. We had filed this amicus brief.
What to read next
One of the most fundamental rights of American citizens is the right to seek redress from illegal government action in a court of law. But the federal government has an arsenal of weapons it wields to deny or curtail this right. Nowhere is this more prevalent than in the government’s attempts to stifle landowner suits challenging federal agency action under the Clean Water Act.