President's weekly report — July 4, 2014

July 03, 2014 | By ROB RIVETT

The theme of this week’s legal report is liberty and is dedicated to the writings of Thomas Jefferson

Supreme Court filings:

 “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.” 

We filed this amicus brief in Yates v. United States.  In this case, a federal officer boarded John Yates’s fishing boat, looking for undersized fish.  After undersized fish were found (which is subject to some dispute, and may depend on whether the fish is measured with its mouth opened or closed) Yates was ordered to keep 70 fish in a crate for land inspection.  He then allegedly threw some of the undersized fish overboard.  Not only did this make Yates potentially liable for a violation of fishing regulations, but the federal government has charged him with violating the financial crimes statute, Sarbanes-Oxley, for allegedly “shredding” evidence — i.e. destroying the fish by throwing them overboard.  For that he could be subject to 25 years in prison.  Our amicus brief argues against such “overcharging” when it is far from clear that a statute actually applies to the alleged conduct.

Supreme Court Victories: 

“To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.” 

We had this great victory this week in Harris v. Quinn.  In this case over 20,000 home health workers in Illinois were involuntarily conscripted into a union, the S.E.I.U., and forced to pay union dues, over $100 per month.  These workers are often family members looking after disabled children or infirm adults and are reimbursed through Medicaid.  They were not employed by the state, yet by executive fiat, the governor declared them all to be union members, and required to pay union dues.  The Supreme Court rejected the notion that the workers were government employees who could be forced to join a union.  We had filed this amicus brief arguing that the First Amendment guarantees that Americans cannot be compelled to speak or associate, or petition the government, against their wishes. Our blog explains this in more detail here.

Continuing the theme that people should not be compelled to finance activities that violate personal beliefs, the Court struck down the so-called “contraceptive mandate” in Burwell v. Hobby Lobby.  What was especially important about this case is that the Court recognized that just because people join together to form a small corporation doesn’t mean that they lose their First Amendment rights.  For the details on two newspaper editorials written by our Tim Sandefur on this case, see here and here.  We are hoping that this decision augers well for our Obamacare challenge, Sissel v. United States.

Supreme Court losses:

“I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.”  Thomas Jefferson, 1791

The Supreme Court denied certiorari in three cases:

In Drakes Bay Oyster Company v. Jewellthe Court let stand a 9th Circuit decision that held the National Park Service’s decision to not renew a lease for a local oyster farm was not reviewable.

In Rocky Mountain Farmers Union v. Coreythe Court declined to review a decision from an unsuccessful challenge to California’s Low Carbon Fuel Standard that argued the regulation interfered with interstate commerce in violation of the constitution.

Lastly, the Court turned back the petition from Minority TV v. Federal Communications Commission, where, as our blog explains, we filed this amicus brief calling for the Court to recognize that commercial speech is fully protected by the constitution.

Environment — Endangered Species Act

“If once [the people] become inattentive to the public affairs, you and I, and Congress and Assemblies, Judges and Governors, shall all become wolves.”  Thomas Jefferson, 1787

In response to petitions and litigation from Pacific Legal Foundation, the United States Fish & Wildlife Service announced that it will consider the downlisting of the manatee in Florida from endangered to threatened.  This is a significant victory for common sense.  After all, their numbers have increased substantially since they were listed and the agency itself already said the manatee should be downlisted.  It’s just that the Service refused to act until we sued.

Property Rights — Texas beaches

“I own I am not a friend to a very energetic government. It is always oppressive.” Thomas Jefferson, 1787

As explained here in our blog, today, the Texas Supreme Court issued an opinion in Porretto v. Patterson, a complicated beach takings case.  In a nutshell, the Court affirmed the Porrettos‘ ownership of the dry beach property they claimed, — and that the State’s act of dumping sand on Porrettos‘ land did not cause the land to become State-owned. But it rejected the Porrettostemporary takings claims.

“I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man.”  Thomas Jefferson, 1800

Watch this case video for more on the case.