President's weekly update — June 7, 2013

June 07, 2013 | By ROB RIVETT

Obamacare — Platonic Guardians

We filed a friend of the court brief in Coons v. Geithner challenging the constitutionality of Obamacare’s “Independent Payment Advisory Board.” That’s the agency created by Obamacare that is charged with controlling Medicare reimbursement rates. But unlike any other agency Congress has ever created, IPAB is free of Congressional, Presidential, or judicial oversight, and although it supposedly only writes “recommendations” regarding Medicare, the law actually provides that those “recommendations” automatically become law—and there’s nothing elected officials can do about it. Amazingly, the law even tries to make IPAB un-repealable. The constitutional challenge to that law is now before the Ninth Circuit Court of Appeals. Don’t miss Timothy Sandefur’s fascinating blog post on IPAB’s “Platonic Guardians” of our health.

Economic Liberties Project — Right to Earn a Living

In our Nevada moving company restriction case, Underwood v. Mackay, we filed this motion with the federal district court in Reno asking for an emergency restraining order. We are asking the court to bar Nevada bureaucrats from shutting down Maurice Underwood’s moving company under that state’s anti-competitive licensing laws–at least until the court can decide whether those laws are constitutional or not. We filed our civil rights lawsuit on behalf of Underwood last fall, arguing that the licensing law–which requires a would-be moving company owner to prove that he wouldn’t compete against existing moving companies, before he’s allowed to get a license–is unconstitutional. But a few weeks ago, Nevada officials threatened to prosecute Underwood for advertising his business. We’ve now asked the judge to block enforcement of the unconstitutional licensing laws until it can reach a final decision. The court will hold a hearing on June 21 at 10 in the morning in Courtroom 3 of the federal courthouse in Reno. For more details, see our blog post.

Free Enterprise Project — Moldy Class Action Suit

On Monday, in Sears Roebuck v. Butler, the United States Supreme Court vacated the Seventh Circuit’s decision that permitted a class action against Sears, over alleged moldy smells emanating from certain washing machines and sent the case back to that court for reconsideration in light of a recent Supreme Court decision (Comcast v. Behrend) that emphasized the importance of common questions predominating among the class members. The Seventh Circuit’s decision had extolled the virtues of efficiency as a reason for combining very different plaintiffs, who owned different washers, into a single, massive lawsuit. As explained in a previous blog post, and PLF’s amicus brief filed in support of the petition for certiorari in this case, the Constitution values individual rights over efficiency. This case generated interest in the press because the washers were several iterations of the then-new, water-saving front-loading machines. If the class action proceeded, it would have been a severe disincentive to companies to innovate new products. Fortunately, the Seventh Circuit will have a second chance to get it right.

Free Enterprise Project — Liability for Errant Car

We filed our friend of the court brief this week in Rodriguez v. Del Sol Shopping Center Associates in the New Mexico Supreme Court. After an out-of-control car driven by a medically impaired driver careened into a storefront, the victims of the crash naturally sued–the business and property owners (who no doubt had the deeper pockets). Our brief and blog post explains that liability should not attach for such unforseeable accidents caused by third parties. (The shopping center is to the right.)

Free Enterprise Project — Liability for Design Defects

We filed this friend of the court brief in Tincher v. Omega, a case involving an allegedly defective gas supply line that caught fire after being struck by lightning. As described in more detail on our blog, at issue is whether strict liability applies in such a case, as opposed to a more nuanced standard that has been adopted in other jurisdictions.

Environment — Right to Protect Economic Interests

The Supreme Court denied certiorari this week in American Independence Mines & Minerals v. Department of Agriculture. In that case, as described in our blog, the plaintiff had been injured by a Forest Service rule that allegedly violated the National Environmental Policy Act, but the Ninth Circuit, in an unpublished decision, did not allow the plaintiffs to challenge that action because the plaintffs had only economic, not environmental, interests at stake. We had filed this amicus brief supporting review.

Environment — Stream Flows

In an administrative proceeding before the California Department of Fish and Wildlife Instream Flow Recommendations, the Department announced this week that they were abandoning further work to revise the existing flow recommendations on Scott Creek in Santa Cruz County; that in the future, consistent with PLF’s written recommendation, they would limit work on flow recommendations to streams listed in their annual work plans; that the addition of a stream to the work plan would be preceded by community outreach; and, consistent with PLF’s written recommendation, future flow recommendations would take into account updated scientific research and available real world flow gauge data, rather than only computer simulation data. For more, see our recent blog post.

Environment — Environmental Review of Initiative-Based Land Use Approvals

In Tuolumne Jobs & Small Business v. Superior Court (Wal*Mart), PLF filed this amicus brief in the California Supreme Court urging that all actions taken by city councils in response to citizen initiatives are exempt from the California Environmental Quality Act because direct actions taken by citizens are presumed to proper under California law. In this case, the local citizens wanted a Wal*Mart in their community but the usual suspects opposed.

Individual Rights — Charter Schools

We filed our amicus brief today in Atlanta Public Schools v. Atlanta Neighborhood Charter School. Established government school districts are often jealous of charter schools and in this case sought to reduce funding to an independent charter school based on pension obligation liabilities owed by the district schools and not the charter schools. Our blog post explains more. Incidentally, if you’ve never read Milton Friedman’s discussion of the role of government in schools in Capitalism and Freedom, put it on your book list. You can also read a short article by Friedman here. Simply put, to make our school systems work, we need better alternatives.