President's weekly roundup

September 14, 2012 | By ROB RIVETT

Catch up on what you may have missed from PLF this week:

Free Enterprise Project:  Arbitration Contracts

California took another step in denying the right of Californians to enter into contracts with arbitration clauses when the California Supreme Court denied a request to depublish and a petition for review in Hoover v. American Income Life Insurance Company.  Contrary to federal law, the Court of Appeal had ruled that arbitration clauses cannot be applied to legal claims based on statutory rights.  In other words, parties that may prefer to arbitrate claims that arise out of statutory rights may not be able to do so if one party objects – even after both parties voluntarily agreed to arbitrate the claim in advance.  PLF had filed an amicus brief supporting review, urging the court to uphold federal law and to recognize the right of citizens to enter into voluntary contracts.

Environment – Endangered Species & Green Sturgeon

The Endangered Species Act says that the federal government must consider the economic impacts of designating an area as critical habitat, and then must weigh the economic impacts against the ecological benefits of a critical habitat listing.  (In areas designated as critical habitat, landowners are more constrained than usual if they wish to make use of their land.)  When setting aside critical habitat for the Green Sturgeon, however, the federal government held that in areas of particularly high value, it need to consider the economic impacts of setting aside critical habitat.  We are challenging this defective process in Building Industry Association of the Bay Area v. United States Department of Commerce, as described on our website here.  On Wednesday, the trial court did not agree with us, saying from the bench that so long as the feds prepare an economic analysis – that would be “good enough” for the court, even without the balancing required by the statute.  As soon as the written decision is issued, we will review it for an appeal to the Ninth Circuit.

Health Care – Origination Clause

We filed our amended complaint in Sissel v. Department of Health and Human Services.  As explained on our blohere and our website here, there is still life left in this challenge to Obamacare.  After Justice Roberts explained that the individual mandate cannot be justified under the Commerce Clause, and that the “penalty” for not buying health insurance is, in fact, a “tax”, we looked more carefully at how the “tax” was adopted by Congress.  Contrary to the requirement in Article I, Section 7, of the Constitution, this “tax” did not originate in the House – it was the product of the machinations of Harry Reid’s Senate.  Even to the jaded, the details are astonishing.  Reid took an existing House Bill dealing with housing for veterans and stripped of everything except its number, and inserted the entire Obamacare law, tax scheme and all, into that bill.  Professor Randy Barnett did a pretty complete write-up of our complaint this week as well on the Volokh Conspiracy legal blog.