President's weekly report — October 30, 2015

October 30, 2015 | By ROB RIVETT

Obamacare back to the Supreme Court

We filed our petition for cert in Sissel v. United States this week, asking the Supreme Court to take the case.  As our blog explains, when Justice Roberts upheld the law because it was a “tax” and not a “penalty,” we realized that if the individual mandate (as well as the other taxes included in Obamacare) were a tax, then it violates the Constitution’s Origination Clause.  All bills for raising revenue are supposed to originate in the House of Representatives, the body closest to the people.  But the lower courts here created exceptions wide enough to drive the Internal Revenue Code through — finding that because the bill’s “primary purpose” was to improve health care Obamacare wasn’t a bill for raising revenue.  Alternatively, the lower court ruled that the Senate’s “gut and amend” procedure — wherein every word was stripped and replaced in a House bill — complied with the Constitution’s requirements.  We’re hoping the Supreme Court is interested enough to take the case because this is the last realistic chance to tackle Obamacare’s sorry mess.

Mixed ruling in Florida tort case

Today, the Florida Supreme Court issued its opinion in Aubin v. Union Carbide, a case that recognizes limits to manufacturers’ liability. William Aubin brought the lawsuit after he contracted mesothelioma in 2008, allegedly from working with asbestos-containing joint compound and texture sprays produced by Georgia Pacific, and provided by Aubin’s employer. Aubin alleged that Georgia Pacific’s packaging did not warn users that they should wear masks to avoid the hazard of inhaling the product’s dangerous dust. But whether or not Georgia Pacific adequately warned its consumers—consumers like Aubin—was not the topic of this lawsuit. Rather, Aubin claimed that the company that mined, processed, and sold the asbestos to Georgia Pacific should be liable for harm that he suffered allegedly due to Georgia Pacific’s products and failure to warn. The jury awarded Aubin $6.6 million from Union Carbide.

PLF filed a friend-of-the-court brief explaining why the court needed to limit liability of manufacturers or suppliers of component parts that are used in various products. Our brief asked the court to limit liability by adopting the “component part doctrine” to prevent suppliers of versatile goods from becoming de facto insurers of manufacturers who incorporate their goods into other products.

In today’s decision, the Florida Supreme Court did not adopt the component parts doctrine for which PLF advocated, but it disapproved bad Florida precedent that had rejected the “learned intermediary” defense, which provides some similar protections for suppliers.  For more, see our blog post here.

Excellent takings decision upheld

Today the Federal Circuit denied the government’s motion to rehear Lost Tree Village v. Army Corps of Engineers.  Among other things, the court rejected the government’s ultimate bootstrapping argument that the compensation due to the landowner couldn’t be reduced by the amount that the value was reduced by the regulation and permit denial that took the property in the first place.

Waters of the United States

We filed petition for review of WOTUS rule in 8th Cir on Monday.  The case was transferred to the 6th Circ where the other cases are consolidated.  Oral argument on court jurisdiction Dec 8.

Challenge to secret planning in Washington State

Earlier this month, the Washington Supreme Court dealt a blow to transparent government when it ruled that a San Juan County committee, which included three of the county’s six-member council members, could meet behind doors to make important decisions regarding its critical areas ordinance update without violating the Open Public Meetings Act. We wrote about the decision here.

On Friday, PLF attorneys filed an amicus brief asking the Court to reconsider its opinion.  For more, see our blog post here.

Equality Under the Law Project

We filed this amicus brief in Rothe Development v. United States Department of Defense, e support Rothe’s challenge to the racial preferences in Section 8(a) of the Small Business Act.  We explain how the cited disparity studies are flawed, and how the court below did not use the proper legal standard in its narrow tailoring analysis.