PLF Liberty Blog

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To make sure that existing links to posts on this blog remain functional, we will be keeping our current content here temporarily.  If you are currently linking to posts on this website from your own blog or website, please make a note to change your links when this content gets transferred. 

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The Endangered Species Act can run from the Constitution, but it can't hide

Author: Brandon Middleton

Looks like the greenies are having a nice little field day in response to the Supreme Court's decision not to review PLF's Commerce Clause challenge to the federal delta smelt regulations.  Feel free to peruse their sites yourself, but you'll only find ad hominem attacks against PLF and its constitutional allies, as well as the odd suggestion that the delta smelt water cutbacks are actually for the purported benefit of other federally-protected fish species (this is a legal redundancy demonstrating that even the enviros sometimes have difficulty coming to grips with the audacity of their advocacy).

What you won't find from NRDC et al.: a principled defense of the Ninth Circuit's decision to uphold the delta smelt regulations under the Commerce Clause, or any explanation of how their interpretation of the Constitution offers a limit to federal regulatory authority.

Obamacare: PLF urges Supreme Court to address federal spending issues

Author: Timothy Sandefur

This morning, Pacific Legal Foundation joined our Claremont Institute friends to file this brief in support of Florida’s challenge to the constitutionality of the Obama Administration’s health care law. This is one of five petitions that the Justices now have before them—three of which arise from the Eleventh Circuit’s decision ruling the law invalid. (The sixth case, Virginia v. Sebelius, coming from the Fourth Circuit, has not yet been fully briefed.) Meanwhile, a new poll reveals that a majority of Americans now say they oppose the law.

This brief, authored by Chapman University law professor John Eastman, differs from the many others PLF has filed, in that it asks the Court to consider the issues raised under the “Spending Clause” of the Constitution, in addition to the many other constitutional issues raised by these cases. That’s the clause that allows the federal government to “pay the Debts and provide for the common Defence and general Welfare of the United States.” Unfortunately, what often happens is that Congress collects taxes from the nation, and then tells states that they can get that money back, in the form of grants or other favors, only if the state agrees to certain conditions—conditions that often end up abridging state autonomy and expanding federal power. Of course, if the state refuses, it still loses the money. So it’s a heads-I-win, tails-you-lose kind of proposition.

In South Dakota v. Dole, the Supreme Court rejected a state’s challenge to the constitutionality of a federal highway funding program that required the state to change its drinking age. The Court said this was okay, because if the state didn’t like the condition, it was free to refuse the money. But what about the fact that the state still loses the money if it refuses? And what about the many other cases where the money involved isn’t—as in the Dole case—a relatively small amount, but—as in the case of Medicare—a large fraction of the state’s entire budget? “In some circumstances,” the Court admitted, “the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion.” If that was ever true, it is true here. Yet the Eleventh Circuit rejected the argument of Florida and the other states that the federal government went too far here. Even so, as the PLF/Claremont brief observes, the real focus in these questions should be less on the amount of money involved, than on whether the federal government is using the spending power to get around the constitutional limits on its powers. We hope the Supreme Court will take up not just the question of the Individual Mandate, but also the questions raised under the Spending Clause.

Click here to see PLF’s other work in challenging Obamacare.

Supreme Court declines to review constitutionality of delta smelt regs

Author: Brandon Middleton

This morning the Supreme Court issued an order declining to review Stewart & Jasper Orchards v. Salazar, PLF's Commerce Clause challenge to federal delta smelt restrictions.  More thoughts to come later today.

Update: Here is Bloomberg's story on the denial.

Update 2: The Central Valley Business Times has this report.  And here is PLF's press release on today's development.

Obamacare...unrepealable?

Author: Timothy Sandefur

Chapman University law professor Ronald Rotunda explores the purportedly un-reversible provision of Obamacare that establishes a board of Platonic Guardians to oversee Medicare. You can read more about that case here.

Holiday gifts for the constitutional bookworm in your family

Author: Timothy Sandefur

If you’re looking for a little something for that friend or family member who’s interested in the Constitution and its relevance today, you might consider picking up one of these excellent recent books.

PLF op-ed on the Fisher case

Author: Joshua Thompson

Courtesy of the Houston Chronicle, PLF principal attorney Sharon Browne, and Center for Equal Opportunity President Roger Clegg authored this op-ed.  Here's a snippet:

The Constitution, properly interpreted, doesn't accept excuses for racial discrimination. If the Equal Protection Clause of the Fourteenth Amendment means what it says, then government - including public schools and universities - must treat people as individuals, not classify them as faceless members of racial categories.

Focusing on skin color in pursuit of diversity amounts to stereotyping. It implies that all members of racial groups think or act alike, so that racial diversity automatically equates to a diversity of perspectives. In the real world, shared skin color does not ensure shared backgrounds or beliefs. Color-coding students is as unrealistic as it is unfair.

Read the rest.

"How did the tiny delta smelt end up before the U.S. Supreme Court...?"

Author: Brandon Middleton

So asks the Romberg Tiburon Center in its latest report.  A rhetorical question perhaps, but with an easy enough answer!

Incidentally, we may know by next week whether the Supreme Court will hear PLF's constitutional challenge to the federal delta smelt regulations.

KGO's Bill Wattenburg speaks up for Sacketts, Sterlings, and PLF!

Bill Wattenburg, host of a radio show on San Francisco's KGO Newstalk AM810, was discussing the threats that government bureaucracies present to our freedoms on his show last week.  He used the Sackett case as a prime example, and also discussed our Sterling case.  Many, many thanks to Bill for supporting PLF and for his help over the years in getting the word out about what we do and about the challenges our clients face.

Sackett_Wattenburg_KGO810_10-16-11

Supreme Court calls for response from Florida in interior-design case

Author: Timothy Sandefur

The U.S. Supreme Court has called for the state of Florida to respond to the petition for certiorari in Locke v. Shore, the Florida interior design case in which we filed an amicus brief just a few days ago. This is a good sign that the Court is seriously considering taking the case.

Government permission to drive a taxi now costs $1 million

Author: Timothy Sandefur

I start The Right to Earn A Living with a discussion of taxi licensing, and how the government’s restrictions on the taxi industry make the legally required “medallions” cost a ton of money. This hurts consumers, who end up paying more for taxis than they otherwise would, but it hurts workers even more, since it dries up the economic opportunities they might otherwise have. Since taxi drivers can’t afford the medallions, they end up working most of the week just to pay the cost of leasing the permission to operate the cab, and then get to keep what’s left over afterwards. And this whole cartel scheme is policed by anti-competitive bureaucrats who ensure that nobody goes out there and gives someone a ride without the government’s permission.

The New York Times now reports that taxi medallions have reached the $1 million price tag. That means, permission to operate a single cab now costs $1,000,000. And note this part:

There are 13,237 medallions in the city; new ones, when issued, are sold at auction. But the medallion pool is rarely expanded, creating a scarcity that helps keep values high. (Many owners have objected to a city proposal that would allow livery cabs to pick up street hails outside busy parts of Manhattan, saying such a plan would lower the value of their medallions.)

The owners objected to allowing freedom of competition because, by making it illegal for consumers to get the taxi services they need, the politically well-connected few who enjoy a cartel position are able to charge way above the market rate. It’s not that scarcity keeps the value high—it’s that the artificial scarcity keeps the prices high, and keeps economic opportunity low.

And when you consider that this is opportunity for precisely those people who need it the most—often immigrants, or workers whose experience and education don’t afford them many alternatives to support themselves and their families—you can see what a travesty this government-run oligopoly really is.

PLF's Timothy Sandefur talks with Peter Schiff

Author: Timothy Sandefur

On Monday I was on the Peter Schiff show (no relation to my colleague, Damien) to talk about the right to earn a living and our lawsuit challenging the Missouri Mover Monopoly. You can listen online here.

We're moving our blog!

Starting in November, the PLF Liberty Blog will move to a different site:  http://blog.PacificLegal.org.  If you are a regular reader of our blog, please bookmark the new site!  Please note, however, that we will be keeping this blog site alive for a while, so that any current links to this site will remain active.

Gnatcatcher controversy continues ...

Author: Reed Hopper

The California gnatcatcher has been the center of controversy for years.  It was listed as threatened in 1993 based on a questionable study by Atwood who concluded the seabird is a subspecies of a much larger population ranging from California to Mexico.  Subsequent morphological, statistical and even genetic studies have since shown Atwood was wrong.  And Atwood himself has repudiated his original findings and now believes the California gnatcatcher is not a valid subspecies.  Up until today, the U.S. Fish and Wildlife has been uncertain as to the classification of the bird.  Based on these developments, PLF filed a petition to delist the gnatcatcher as a "threatened species" on behalf of the Coalition of Labor, Agriculture and Business, the Property Owners Association of Riverside County and M. Lou Marsh, M.D. 

Under threat of suit, the Service responded today to the petition to delist the gnatcatcher.  Ironically, the Service rejected the petition by defending the original Atwood study.  Curiosuly, the Service does not mention that even Atwood no longer defends that study.  The Service's response to the genetic studies cited in the petition are equally curious.  According to the Service, because the cited genetic studies relied on mitochondrial DNA markers and not on nuclear DNA markers, the genetic studies are inconclusive.  This is curious because the Endangered Species Act requires that listing decisions must be based on the "best available" scientific data and these are the only genetic studies available.  Under the standards set forth in the ESA, the petition provided ample evidence that the gnatcatcher is not a valid subspecies and should have been delisted.      

Federal agency congratulates itself for illegal delta smelt biop

Author: Brandon Middleton

From the Stockton Record's Alex Breitler:

One of the Delta smelt scientists so sharply criticized by former federal judge Oliver Wanger has received an in-house award for her work on the contested biological opinion.

Jennifer Norris last month was given the Star Award from U.S. Fish and Wildlife Service Pacific Southwest Regional Manager Ren Lohoefener, along with fish biologist Matt Nobriga.

The announcement makes no reference to the controversy, though it does mention that Norris and Nobriga both testified before Wanger and "performed outstandingly while working under intense pressure."

In addition to Norris, the judge criticized the work of U.S. Bureau of Reclamation scientist Frederick Feyrer. Specifically, Wanger called Norris a "zealot" and claimed she had not been honest with the court.

Wanger’s words made political waves and, earlier this month, the Department of Interior said independent experts would review the science behind his allegations.

Talk about chutzpah!  Breitler rightly notes the irony of a federal agency giving its employee high praise shortly after a federal judge's determination that the staffer provided court testimony in bad faith.  But it's important to note that the delta smelt biological opinion is not simply being "contested"--it is in fact illegal.

Employer liability for driving-while-fatigued?

Author: Adam Pomeroy

Last week PLF attorneys filed an amicus, or friend-of-the-court, brief in Maryland’s highest court, discussing employer liability for off-duty employees who drive while fatigued. The case is Barclay v. Ports America, Inc.

Ports America operates marine cargo facilities in Baltimore and employs longshoremen to load and unload ships. According to the terms of the collective bargaining agreement between Ports America and the longshoremen’s union, once an employee went on shift he could stay on shift as long as he wanted – Ports had no power to cut short an employee’s shift if there was any work left to do. In this case, a longshoreman employed by Ports America chose to work 22 hours unloading a ship and then began a 45-mile commute home. En route, he fell asleep at the wheel, crossed the center line, and collided with a car driven by Michael Barclay. Unfortunately, the longshoreman was killed and Mr. Barclay was grievously injured. Barclay sued Ports America alleging that the employer had been negligent in permitting long work hours and then letting employees drive home. Barclay argued that employers have a duty to general public to prevent fatigued workers from using the public highways. The lower courts didn’t recognize that duty, but Maryland’s high court is now considering the case.

PLF argued that employers do not have a duty to the public to monitor employees for fatigue or to prevent off-duty employees from driving while fatigued.  Employers should provide resting areas onsite for employees who do not believe they can drive safely (as Ports America did in this case), but cannot restrain an employee who believes himself competent to drive.  Finding that employers have such a duty would have severe negative consequences:

• first, employees would have to monitor employees for fatigue – possibly leading to violations of employees right to privacy;
• second, employers would have to prevent fatigued employees from leaving – possibly leading to violence or liability if the employee demands to leave and the employer restrains the employee from leaving;
• third, it would allow employees to not take responsibility for their actions by giving it to their employer; and
• fourth, recognizing a broad duty such as this would open the doors for opportunistic litigants to unjustly go after employers solely because they are the “deep pockets.”

Courts should not impose tort liability on employers for the actions of their off-duty, off-premises employees. If anyone is liable to Mr. Barclay it is the longshoreman – through his estate - who chose to drive home while fatigued.