August 7, 2015

President’s weekly report — August 7, 2015

By President’s weekly report — August 7, 2015

Before we get into this week’s report, just a reminder to keep an eye on our event calendar for upcoming PLF speakers in your area. And don’t forget our annual gala, coming up in only a month, aboard the Queen Mary in Long Beach, California. Join our speakers P.J. O’Rourke and Hugh Hewitt for a fun and glamorous evening that helps the worthy cause of rescuing liberty from coast to coast. Finally, if you haven’t already, please subscribe to PLF’s Courting Liberty podcast to follow our work defending the constitution in courtrooms (and classrooms!) across the country.

Here’s this week’s report:

The Obamacare tax originated in the wrong house

This morning, the D.C. Circuit Court of Appeals rejected our request to rehear our Origination Clause challenge to Obamacare, Sissel v. Department of Health and Human Services. In a long dissent, four judges warned that the decision threatens the separation of powers and puts individual liberty at risk. On behalf of our client, Matt Sissel, we will, of course, be asking the U.S. Supreme Court to take the case. For now, you can learn more about the case from our blog posts, and get copies of the briefs and other materials at our case page.

Do environmental agencies have to obey the law?

This week we asked a federal judge in California to put a stop to the U.S. Fish and Wildlife Service’s refusal to obey Congress when it comes to protecting the livelihoods of California fishermen. In 1986, Congress passed a law allowing the Service to protect sea otters, but ordering the Service not to fine or imprison people who harm sea otters accidentally. The Service obeyed…until 2012, when it changed its mind and decided to ignore what Congress told it to do. That case is called California Sea Urchin Commission v. U.S. Fish & Wildlife Service, and you can learn more about it here.

Discrimination’s okay if it doesn’t “unnecessarily trammel people’s rights”

In Shea v. Kerry, we represent William Shea, a Foreign Service officer whom the U.S. State Department discriminated against because of the color of his skin. The State Department doesn’t deny that—but it says it was allowed to do so, because that discrimination was based on “the existence of an affirmative action plan,” which the Supreme Court said was okay in two cases in the 1970s and 80s. In a 2009 case called Ricci, however, the Supreme Court held that a fire department that discriminated against firefighters because of their skin color could not defend itself on the grounds that it did so in order to avoid being sued by minority groups. We argue that under Ricci, the “existence of an affirmative action plan” can’t be an excuse for government racial discrimination. Unfortunately, the D.C. Circuit ruled against us today, holding that “The [State] Department…acted to ‘expand[] job opportunities for minorities and women,’ and to ‘eliminate traditional patterns of racial segregation,’” and therefore Ricci does not apply. So long as the Department’s affirmative action plan does not “unnecessarily trammel[] the rights of white applicants,” its race-based discrimination is okay. (Funny, I don’t remember there being an “unnecessarily” clause in the Constitution’s promise of equal protection, do you?)

Have California courts finally got the message about arbitration?

For years, PLF has been fighting California courts in their efforts to evade the Federal Arbitration Act, which requires that arbitration agreements be enforced like any other contract. The state’s courts, skeptical of the fairness of arbitration, have found plentiful ways to escape enforcing these contracts, only to be reversed by the Supreme Court. In its latest opinion on the subject, Sanchez v. Valencia Holding Company, in which we filed this brief, the California Supreme Court appears to have got the message. But as our blog post explains, there are still plenty of “ifs.”

Economic liberty: White House says there’s too much licensing

One welcome development this week was the White House’s report on the problems with occupational licensing laws. Timothy Sandefur discussed the report in a series of blog posts here.

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California Sea Urchin Commission v. Jacobson

When the U.S. Fish and Wildlife Service asked Congress for permission in the 1980s to introduce sea otters into Southern California waters, Congress agreed, as long as lawful fishing activity could continue without prosecution over incidental otter takings. The otter population grew, but not enough for the Service which declared the program a failure in 2012. This meant the agency would no longer honor the fishing industry protections. The Ninth Circuit Court of Appeals further ruled that since the original statute didn’t spell out exactly what happens if the program ends, the agency can claim any powers not expressly forbidden by Congress. On behalf of sea urchin and abalone divers, lobster trappers, and other fishermen, PLF has asked the U.S. Supreme Court to review the case, enforce the Constitution, and give power back to Congress where it belongs.

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