President's weekly report — October 25, 2013

October 25, 2013 | By ROB RIVETT

Health Care Challenge

In one the most significant remaining challenges to Obamacare, Sissel v. United States, we filed our opening brief in the D.C. Circuit Court of Appeals.  As explained in our blog post, our challenge is based on Congress’s violation of The Origination Clause, that part of the Constitution that requires all revenue-raising tax measures to originate in the House, rather than the Senate.  Here, the Senate did a “gut and amend” of an unrelated house bill, saving only the bill number for its grand scheme.  And, as Justice Roberts held last year, the individual mandate is a tax, not a penalty. Thus, Congress violated the Origination Clause.

Free Enterprise Project — Tort reform

We filed our amicus brief today in Verdugo v. Target.  In this case, a woman died of a heart attack while shopping at a Target store and her family sued, alleging that Target had a duty to have a defibrillator on site with personnel trained to use it.  As unfortunate as the woman’s death may have been, a Target store is a department store, not a medical service provider.  Plaintiffs are essentially seeking to hold store owners liable for the health problems of their guests; this could give rise to an entirely new and potentially unlimited duty, the cost of which eventually would be passed onto all shoppers.  For more information see our blog entry.

Free Enterprise Project — More Tort Reform

PLF filed an amicus brief in the Florida Supreme Court on Monday, in Aubin v. Union Carbide.  Here the family of a man who allegedly contracted mesothelioma from an asbestos containing joint compound sold by Georgia Pacific sued the company that mined the asbestos because the mining company did not adequately warn the end users.  The problem is that such a duty to warn is too far removed from anything that the mining company could have done.  As our blog explains, liability here would truly reach the outer limits of the blame game.

Environment —  The Park Service’s war on oysters

This morning, PLF, joined by the California Cattlemen’s Association and the Building Industry Association of the Bay Area, filed an amicus brief in support of Drakes Bay Oyster Company’s petition for rehearing en banc of the Court’s September decision in the case. That opinion upheld the trial court’s denial of an injunction that would keep the shellfish farm in existence while it litigates its permit renewal claims against the Interior Department and the National Park Service.  For more details, see our blog post on this case.

Endangered Species Act Week

In light of the 40th Anniversary of the Endangered Species Act, we’ve posted a series of blog posts reflecting on the history, impact, and need for reform of the ESA.  You a description of the blogs here, as well as a short video on the subject.  We also have released this podcast on the ESA.

Economic Liberty Project — Certificates of Necessity

This morning the Fourth Circuit Court of Appeals decided the case of Colon Health Centers v. Hazel, a case challenging the constitutionality of Virginia’s “Certificate of Need” or CON law for clinics that want to buy medical equipment to help screen people for cancer.  We had filed an amicus brief expressing our concern was that the trial court dismissed the claim that the law lacked a rational basis — before plaintiffs even had a chance to prove it lacked rational basis.  The government’s mere assertion that the statute was rational was enough to toss the case.  In today’s ruling, the court did allow the plaintiffs to go forward with some other arguments, but on the matter of rational basis, it held that so long as the government “articulates”—that is, merely says, without any facts—that a law is rational, that’s all the Constitution requires.  For more analysis of this unfortunate decision, see the discussion in our blog.

Property Rights — Manufactured Home Rent Control

We received an adverse decision from the California Court of Appeal in Colony Cove Properties v. City of Carson, the latest iteration in a long-running challenge to a  confiscatory manufactured home park rent control  scheme.  PLF filed an amicus brief in the state proceedings focusing on the fact that limiting annual rent increases to an amount less than the rate of inflation necessarily causes the real return on a rental asset to decline, which amounts to the progressive confiscation of the value of the asset, supposedly prohibited under California law. This line of reasoning drew only a verbal shrug from the court, which responded that the owner might be able to make up for the compulsory loss in real value some other way.  That, of course, comports with neither the law, the constitution, nor any economic reality.