President's weekly report — August 1, 2014

August 01, 2014 | By ROB RIVETT

Obamacare — When is a Tax not a Tax?

We received a negative decision from the D.C. Circuit in Sissel v. U.S. Department of Health and Human Services.  This was our challenge to the Obamacare scheme based on the fact that the taxes in the statute did not originate in the House of Representatives, as required by the Constitution.  As our press release indicates we intend on taking this one up, all the way to the Supreme Court if necessary.  The Court of Appeals decided that the Obamacare taxes were not really taxes (despite the Supreme Court having called them taxes) because they were not for the purpose of raising revenue, which they were.  But even if they weren’t, we cannot find any place in the Constitution that says the Origination Clause can be ignored if taxes are raised for some other additional purpose.  As our blog post notes here and here, this is a misguided and dangerous decision.

Property Rights — Extortion-by-the-Bay

We filed in this complaint in Levin v. San Francisco.   Here our lead plaintiff owns a two-story home, the first floor of which was occupied by a renter when the Levins bought the home a few years ago.  The rent is controlled by San Francisco’s rent board.  The Levins would like to move from their small one-bedroom upstairs floor into the small one-bedroom downstairs floor.  But San Francisco has adopted a brand-new scheme wherein the owners of rental property are required to pay tenants “relocation assistance” for the “privilege” of taking back their own property.  Here, the Levins must pay an amount equal to the difference between rent-controlled rents and market-rate rents for two-years: here a staggering $117,000!  What is really galling is that the renters need not spend any of this amount on rent.  The renter could move out of town and buy a string of cars for all the City cares.  As our complaint and our blog explains, this law is not only blatantly absurd, it is also unconstitutional.

California Medium-Speed Rail — A loss for taxpayers

A California Court of Appeals paved the way for the issuance of $8.6 billion in bonds to finance California’s so-called “High-Speed” railroad.  You may recall that a trial court judge refused to validate the bonds because the rail authority failed to demonstrate that the bonds were going to be used for the high-speed rail project that the voters had previously approved.  This was not idle speculation: the voters approved a high-speed rail project, not the amalgamation of high-speed rail and local speed rail that we were left with after the Governor trimmed $32 billion off the total cost to bring the total down to a mere $68 billion.  Now on appeal in High Speed Rail Authority v. Superior Court, the appellate court essentially said it was not up to the court to question whether bond moneys might be used for something other than what the voters approved.

Equality Under the Law Project — Quotas in California Redistricting

We had oral argument this week in Connerly v. State of California, our challenge to California’s use of racial quotas in constituting its Citizens Redistricting Commission.  California law is clear:  quotas are impermissible — even for the creation of a redistricting commission.  As our blog post explains here, an individual’s race can never be a qualification for public office.

Economic Liberties Project — Licensing “Free” Speech

We filed this motion for summary judgment in Young v. Heineman, our challenge to Nebraska’s rule against free speech.  As explained in our blog, our California-residing client is an advertising broker who helps place for-sale-by-owner advertisements on the internet for homeowners across the nation.  Just like a newspaper, she charges a small fee for the service, but is not otherwise engaged in the process of selling, buying, or even negotiating the sales.  Nor does she collect a commission. And yet, Nebraska requires that she first obtain a broker’s license before she can help owners place ads.  But since she does nothing remotely like what a broker does, and since obtaining a broker’s license is a cumbersome, expensive, and time-consuming process that is irrelevant to what she does, Young should not have to jump through these myriad hoops just for the right of helping folks place home-for-sale ads online.

Free Enterprise Project — Tort Reform

We filed this amicus brief in Metak v. Genie, a case where the maker of lift machinery is being sued — after the user ignored the copious warnings not to move the lift while someone was on it.

Environment — Reviewing Jurisdictional Delineations

The Fifth Circuit issued an unfavorable decision in Belle v. United States.  Belle received a “jurisdictional determination” from the Corps, saying that some of its property was wetlands.  Belle disputes that characterization, and would like a court to review it.  We believe that’s a particularly good idea, especially in light of the Corps’ constant push to expand its jurisdiction over wetlands of the dry variety.  However, the Fifth Circuit did not agree, finding that the Corps’ decision is immune from judicial review — at least until an owner goes through an expensive and time consuming permitting process that he might never have needed in the first place.  As explained in our blog, this sort of thinking — that the Corps’ determinations can be immune to meaningful review — is outdated and unworthy of the federal government.  We had filed an amicus brief in support of the landowner.

School Choice — Settlement Victory

In Bullis Charter School v. Los Altos School District, the Bullis Charter School and the Los Altos School District unanimously approved a settlement of all lawsuits between the two parties.  The agreement provides the charter school with specific numbers of portable classrooms and days its students may use various sports facilities for five years.  The settlement resulted, in part, from a mutual desire to pass a $150 million bond measure to fund more schoolrooms.  We had filed this amicus brief in support of the charter school.

School Choice — Alabama

We filed this amicus brief in Boyd v. McGee in the Alabama Supreme Court.  At issue is whether a system of providing tax credits to help parents transfer their children into better schools is constitutional.  The teacher’s union is, sadly, opposed, concerned more about its own welfare than that of Alabama’s children.

Environment — Greenhouse Gas Rule

Last week, Pacific Legal Foundation submitted comments (joined by Dalton Trucking and the Center for Environmental Science, Accuracy, and Reliability) on EPA’s proposed greenhouse gas rule for existing coal-fired power plants.  For  more, see our blog post here.