President's weekly report — April 25, 2014
Equality Under the Law — Victory!
We had a major victory this week before the Supreme Court in Schuette v. Coalition to Defend Affirmative Action. Justice Kennedy, writing for a plurality (meaning that while a majority of the Justices agreed with the result, they did not all sign onto the particular reasoning of the lead opinion by Kennedy) upheld the right of the voters of Michigan to adopt Measure 2, which stopped discrimination based on race, color, sex, or religion in admission to colleges, jobs, and other publicly funded institutions. We had filed this amicus brief in support of Measure 2 on behalf of ourselves, the Center for Equal Opportunity, the American Civil Rights Foundation, the National Association of Scholars, Project 21, and the Cato Institute. Joshua Thompson’s blog post analyzes the Kennedy concurrence in more detail here, as well as the Justice Scalia concurrence (here) and the concurrence by Justice Breyer (here.) As Meriem Hubbard’s editorial in the USA Today notes, there is something backwards about trying to claim that the Equal Protection Clause proscribes efforts to end discrimination. In concluding his opinion, Justice Kennedy eloquently noted, “Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.”
Environment — Right to Challenge Wetlands Cease and Desist Order
We had this very nice victory in federal district court in Duarte Nursery v. Corps of Engineers, the case where we are suing the Corps over its Cease and Desist Order send to the Duarte Nursery. The letter essentially told the Duarte’s to stop farming — OR ELSE! The “or else” the threat of severe fines and penalties, nicely explained through several pages of attached statutes and regulations. The Duartes don’t think they touched any protected wetlands, but cannot get the Corps to give them a hearing. After the Duartes sued, the Corps tried to dismiss our lawsuit, claiming that the Cease and Desist Order really wasn’t an order at all, just an invitation to the Duarte’s to drop by the Corps’ office and discuss things, presumably over a friendly cup of coffee.
The District Court was not impressed. The court ruled that Duarte Nursery’s due process challenge to a Corps of Engineers cease and desist order is ripe for judicial review, and castigated the Corps for arguing in support of dismissal that the order imposed no liabilities or obligations on Duarte and could have been ignored with impunity. Money quote: “ In essence, the government argues that although it (figuratively) held a gun to plaintiff’s head and ordered him to stop farming, plaintiff should have relied on the unstated fact that the gun could not be fired.” Along the same vein, the court wrote that If the Corps, instead of issuing the Order, had burned plaintiffs’ nursery to the ground in an effort to protect wetlands plaintiffs surely would have suffered an injury, even though the Corps still would not have imposed any legal “obligation” or “liability” on plaintiffs.”
Free Enterprise Project — Tort Reform
We filed this amicus brief this week in Webb v. Special Electric before the California Supreme Court. Special Electric served as a broker to a South African mining company that supplied asbestos to Johns-Manville which … well you know where this one is going. Ultimately some pipe was contaminated with recycled asbestos and Webb contracted mesothelioma and he now claims that Special Electric failed to warn him of the dangers of asbestos. As explained in our blog, we’re arguing that there must be some limits on tort liability from a hyperattenuated chain of circumstances. A duty to warn imposed on suppliers of raw materials to all downstream users, not matter how many links in the chain of causation there may be, could grind commerce to a halt.