President's weekly roundup

June 29, 2012 | By ROB RIVETT

Health Care Reform

The Supreme Court upheld Obamacare, aka the “Affordable Care Act” on Thursday in National Federation of Independent Businesses v. Sebelius.  There are silver linings here, in that a majority of the justices clearly understand that there are limits to the Commerce Clause’s authorization of power to the federal government and to the ability of the federal government to coerce the states with blandishments of money under the Spending Clause.  Of course, these opinions are not enough to undo decades of mischief, but they are a start.  That the Court did uphold the Affordable Care Act based on Congress’s ability to levy taxes was both disappointing and bizarre.  It was a theory that few took seriously before Thursday and fewer fully understand on Friday.  We are either at the beginning of a long march down a new avenue of federal power, or we have just witnessed a rationale that will be noted as an historical anomaly in years hence.  Much has been written about the decision, and much will be written for many decades.  Here are a few of the posts by PLF attorneys.

Individual Rights – Equality Under the Law Program

The Supreme Court denied certiorari in Corboy v. Louie, a challenge to a race-based scheme of taxation in Hawaii that gives property tax breaks to people of Native Hawaiian ancestry, but not others.  This scheme has been around since 1921 and, apparently, the Court was not troubled by it enough to take it up.  We discuss the denial here.

Free Enterprise Project – Class Action Reform

The Supreme Court also turned back First American v. Edwards.  It had been granted certiorari, but without explanation, the Court said yesterday that cert had been “improvidently granted.”  This means that the Ninth Circuit’s decision allowing a class action to proceed against a title company will stand.  The problem with this class action, we think, is that the named plaintiff did not suffer a penny in damages.  She is complaining about alleged collusion between brokers and a title company.  However, because the premium she paid is set by state law, whatever collusion that might have existed had zero impact on her bottom line.  It used to be if there was no injury there could be no lawsuit.  But that was then and this is the Ninth Circuit.   For more, see here.

Property Rights – Takings

Last week in Leone v. County of Maui, the Hawaiian Intermediate Court held that a plaintiff alleging a regulatory taking need not seek a legislative amendment to a Community Plan in order to ripen her claim.  PLF filed an amicus brief.  For more on this, visit PLF’s Hawaii Attorney Robert Thomas’s blog here.  (This is, by the way, an excellent blog on all things dealing with property rights and major legal developments in Hawaii.)

Environment —  Logging Roads

The Supreme Court granted certiorari in  two cases dealing with the question of whether rainwater runoff from forest roads (think culverts and side-ditches) require stormwater permits under the Clean Water Act.  These cases, Decker v. Northwest Environmental Defense Center and Georgia-Pacific v. Northwest Environmental Defense Center will be argued next term, probably in the fall.  The Ninth Circuit’s ruling will mean that the EPA must process millions of permits throughout the West, despite what we thought was a clear exemption in the Clean Water Act.

Thanks to the Ninth Circuit, ditches like this need a federal permit.