President's weekly report — August 23, 2013

Property Rights — Washington State

We filed this amicus brief in Keene Valley Ventures v. City of Richland in support of a petition for review before the Washington State Supreme Court.  Here, the town deliberately flooded the landowner’s property and a trial court found there to be a taking.  But no damages were assigned because the court refused to allow the landowner to testify on value.  The Court of Appeals affirmed, finding the taking only to be “temporary” because the City said it would stop the flooding — but it has no plans to actually do so.

Separation of Powers — Commerce Clause Limits

Over the years we have often supported the idea that the federal government is one of limited and enumerated powers.  In particular, we have argued that the Commerce Clause does not give the federal government a blank check to interfere in every conceivable human activity just because of some attenuated connection to interstate commerce.  Most recently, we have argued that the Fish and Wildlife Service lacks authority to regulate purely intrastate animals such as the Delta Smelt and the Utah Prairie Dog.  There was an interesting decision today in a gun rights case from the Ninth Circuit in Montana Shooting Sports Association v. Holder.  The shooting association argued in favor of state legislation that declares the manufacture and sale of certain firearms within the state was beyond the scope of Congress’s commerce power.  The divided court held that the complaint failed to state a claim because Congress could rationally conclude that unlicensed firearms made in Montana would make their way into interstate commerce.  Thus the Montana Firearms Freedom Act is preempted and invalid.  Because we were concerned that the court might accept certain arguments that eviscerated constitutional limits on the Commerce Clause, we had filed this amicus brief explaining the state of the law.

Individual Liberties — Freedom from Government Discrimination

We filed  our opening brief in Connerly v. State of California in the California Court of Appeal this week.  We are arguing a state law that requires that race, ethnicity, and sex be considered in selecting members of California’s redistricting commission violates Proposition 209, that portion of the California Constitution that prohibits the use of race, ethnicity, and sex in public education, public employment, and public contracting.

Individual Liberties — School Choice

This week is School Choice Week and a visit to our blog posts and podcast on the subject would be an excellent way to understand the importance of providing students, especially low-income students, with alternatives to traditional government schools.  The idea for school vouchers, for example, was first championed by Milton Friedman in his seminal work, Capitalism and Freedom, and is just as timely today as it was a half-century ago.

The New Hampshire Supreme Court just granted review in Duncan v. New Hampshire, which involves a challenge to that state’s school choice law.  The law, which allows parents to send their children to nonpublic schools was attacked because some of those schools might be religious schools.  We had filed an amicus brief on behalf of the legislators who passed the bill, arguing that because parents had a choice in selecting schools, and because public money was not being used for religious instruction, there was no constitutional problem with the measure.

Economic Liberties Project — Right to Earn a Living

We filed this motion for summary judgment in Bruner v. Zawacki, our Kentucky movers case.  We’re hoping to end Kentucky’s anti-competitive rules that forbid new moving businesses to open unless they can get permission from their competitors and prove that the existing companies are “inadequate.”  As explained here these rules do nothing to help consumers but everything to perpetuate an anti-competitive cartel.

Economic Liberties Project — Right to Earn a Living

We filed this amicus brief in support of the casket-maker monks at St. Joseph Abbey.  In St. Joseph Abbey v. Castille the state of Louisiana has told the abbey to stop selling caskets to the public because only licensed funeral directors can sell caskets.  We’re hoping that the Supreme Court will accept this case and issue a clear ruling against such economic protectionism.  For more on this Institute for Justice lawsuit, see our blog post here.