President's weekly report — October 3, 2014
United States Supreme Court — Cert petitions
We’ve filed three petitions for writ of certiorari to the United States Supreme Court this week in three very important cases, each of which could contribute substantially to individual freedom if granted.
- First Petition — the Delta Smelt
We filed this petition for cert in Stewart & Jasper Orchards v. Jewell, a case that directly addresses the economic devastation to California’s Central Valley caused by the cutbacks of water designed to help the Delta Smelt, an endangered three-inch fish. Among other arguments, our petition is asking the Court to review the shibboleth created 38 years ago in Tennessee Valley Authority v. Hill, where the Court found that endangered species must be protected “whatever the cost.” We think that the law has changed enough for the Court to finally recognize that the Endangered Species Act no longer demands species protection at any cost. It might have been one thing to complicate the construction of a government pork-barrel dam in 1978, but it is quite another to exacerbate the effects of an already serious multi-year drought with policies that are causing hundreds of thousands of acres to be fallowed and unemployed farm-workers to stand idle while measures of dubious utility are being employed to help a fish. You can listen to our podcast on the case here.
- Second petition — Due Process in the Eleventh Circuit
We filed this petition in Kentner v. City of Sanibel, a fascinating case out of Florida described in more detail on our blog here. Basically, the Kentners wanted to build a dock — something that riparian property owners have a right to do in Florida. But when the City banned all new dock construction, supposedly because docks harm eelgrass, only the City got to build a new dock because, because, because it was the City. The Kentners tried to explain that their dock would not touch any eelgrass, but to no avail. So they sued, allegation a violation of their due process rights. But the 11th Circuit said they had no due process claim because property rights were defined by state law and therefore couldn’t be fundamental rights. As our petition notes, most other circuits and the Supreme Court have held that property rights are protected by the Constitution’s Due Process Clause. What’s good enough for the rest of the nation ought to be good enough for the 11th Circuit.
- Third petition — free speech and commercial activity
The First Amendment says that there shall be “no law … abridging the freedom of speech.” Last we looked it doesn’t say, “unless the speech is associated with a business.” Thus in our third petition for cert we are asking the Court to strike down a restriction that prevents a lawful buyer and seller of gold from saying that he buys and sells gold. In this case, aptly named Liberty Coins v. Goodman, the State of Ohio has two categories of lawful sellers of gold and other precious metals: those who go through a complex licensing scheme and those who don’t. While it is perfectly legal for the latter to buy and sell gold, it is illegal in Ohio for them to tell anybody that they buy and sell gold. This sort of restriction on free speech is patently absurd; more to the point it is unconstitutional. As our blog notes, the Sixth Circuit found that because the “primary purpose” of the speech (a “we buy and sell gold” sign) was for commercial purposes, it had the right to ban the speech. The problem is that there is no such thing as a “primary purpose” exception to the First Amendment.
United States Supreme Court — Cert grant
- Disparate Impact and the Fair Housing Act
On Wednesday, the Supreme Court granted, for the third time, cert in a case that questions the application of the “disparate impact” theory to the Fair Housing Act. In Texas Department of Housing v. Inclusive Community Affairs Project, the state has been making grants for low-income housing. Unsurprisingly, a fair number of these grants are designed to help build homes in neighborhoods with the most need — poor and often minority neighborhoods. Thus, according to the logic of the lawsuit, there is a “disparate impact” of the grant program on minority populations and therefore an alleged violation of the Fair Housing Act. As noted in our amicus brief, the flaw in this logic is that the Fair Housing Act does not include “disparate impact” as a theory to support a claim of discrimination. Instead, there must be a showing of intent to discriminate. Twice before the Supreme Court has taken up cases where the Administration has tried to shoehorn its “disparate impact” theory into the Fair Housing Act. Twice before the Department of Justice made generous offers of settlement to the victims of its litigation in order to make the cases go away before the Court could rule on the merits. (According to Forbes, Soros money helped grease the skids for the last settlement.) This time we’re hoping the third time is the charm, that the State of Texas doesn’t melt before a federal settlement offer, and that the Court will actually have an opportunity to rule on the merits and toss out the Administration’s radical theory of discrimination in the Fair Housing Act.
Environment and Water Rights, I
In other news, we filed these comments with the United States Forest Service over its proposal to begin regulating groundwater use on and near national forests. Our letter cautions the Service against requiring those who hold permits from the agency to surrender their water rights to the agency as a condition of the permit.
Environment and Water Rights, II
The California Supreme Court denied review in Light v. State Water Resources Control Board, a case where we argued in this amicus brief that the State Water Resources Control Board couldn’t limit water use without a due process hearing.