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President's weekly report — October 17, 2014

October 17, 2014 | By ROB RIVETT

Equality Under the Law Project — Alabama redistricting

We filed this amicus brief at the United States Supreme Court in Alabama Legislative Black Caucus v. Alabama, a consolidated case where plaintiffs are challenging that state’s most recent redistricting as “racial gerrymandering.”  It gets complicated, but part of the reason why race was a factor was because the state had to comply with the since-overturned section V of the Voting Rights Act, which required preclearance of restricting plans and forbade “retrogression” of minority representation.  As our brief puts it:

These cases concern the interplay between this Court’s racial gerrymandering cases, Section 5 of the Voting Rights Act, and the Equal Protection Clause. The first permits consideration of race in redistricting, the second requires it, and the third forbids it.

Our amicus brief explains that the Equal Protect Clause requires that courts should strictly construe the use of race, whenever it is a factor.  For more on this, see our blog.

California’s Cap and Trade tax at the Court of Appeal

We filed our opening brief in Morning Star Packing Company v. California Air Resources Board, our challenge to the billions upon billions of dollars in cap and trade taxes being imposed on Californians.  The bottom line is that while the legislature may have called for the use of market-based mechanisms to reduce greenhouse gasses, it did not intend for its law to become a defacto tax, taking many billions of dollars out of the pockets of Californians.  But that’s exactly what the Board did — it has adopted an auction system that is raising billions for general revenues.  The trouble is, this tax was adopted after Proposition 13 was enacted.  And since “A.B. 32” passed with only a simple majority, and since it is for all practical purposes a massive tax measure, it violates Prop. 13.  For a bit more see our video and blog post.

Obamacare:  Government opposes request for rehearing

In Sissel v. United States Department of Health & Human Services, our Origination Clause challenge to Obamacare, the Federal Government filed its opposition brief to our petition for rehearing en banc today—one week early.  You can read more about it on our blog post here.  We’re also happy to report that Texas and twelve other states filed an  amicus brief in support of our petition for rehearing.  As that brief put it:

Given that federal courts are obligated [by Supreme Court precedent] to adjudicate claims under the Origination Clause, federal courts must give meaningful effect to the constitutional provision—rather than reading it, as defendants would, to be a “meaningless and formalistic rule.” If the Origination Clause means anything, it must mean that the [Affordable Care Act] is unconstitutional.

California Supreme Court:  Full Steam Ahead on the California Choo-Choondoggle.

In the “bullet train bonds” case – California High Speed Rail Authority v. Superior Court — the state Supreme Court declined our Petition for Review.   This leaves in place the Third District Court of Appeal order approving the issuance – or “judicial validation” – of $8.6 billion in bonds.   That’s very disappointing, because the Third District’s ruling is self-contradictory and does taxpayers no service.    It holds, on the one hand, that it is “premature” to rule on whether the High Speed Rail project is legally valid; but on the other hand, it is not premature to borrow billions of dollars – and indebt California taxpayers for decades — to pay for this yet-to-be-vetted project.   PLF argued that both common sense and the state Constitution say the state can’t incur massive debt before we know how the money would be spent, or whether the eventual project would even pass legal muster.  Kudos to the senior member of the California Supreme Court, Justice Marvin Baxter, for publicly dissenting from his six colleagues, and voting to hear our appeal.  More reason to regret his coming retirement in January.
Free Enterprise Project — Courts should not rewrite contracts
We filed this amicus brief in Plains v. Torch before the Texas Supreme Court.  This case came about after the United States breached an offshore oil drilling lease and was hit with $83 million in damages.  That’s a fair bit of change, and that got a prior owner of the leases sniffing, and it decided to sue, saying it was entitled to $44 million.  While the language of the contract is unambiguous — and is used in many such leases — the court decided that it would best if a jury decided what was “fair.”  Problem is, that contracts are meant to be interpreted by their plain language, and not torn up to satisfy some misplaced notions of fairness.  For more detail, see our blog post here.

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