PLF Liberty Blog

David Mayer on the right to earn a living

Author: Timothy Sandefur

Prof. David Mayer of Capital University speaks about his new book, Liberty of Contract.

Court rejects environmental "Chicken Little" arguments in PLF victory

Author: Daniel Himebaugh

Today, the Washington Court of Appeals upheld San Juan County property owner Chris Hughes' permit to build a single-family dock.  Last spring, PLF filed an amicus brief supporting Hughes in his struggle to defend the project from an environmental group that alleged that the dock would spark global eelgrass decline.

In short, Hughes sought permission from the county to build a dock to serve his Pearl Island residence.  The county granted the permit, subject to conditions.  That's when Friends of the San Juans appealed the permit to the Shorelines Hearings Board, alleging that Hughes' dock would do irreparable damage to the environment, even though Hughes proposed to build the most environmentally friendly dock possible.  Friends' parade-of-horribles arguments persuaded the Board to overturn Hughes' permit, although the Board admitted that the evidence was "insufficient" to "determine with any certainty the extent and long-term consequences" of the dock's impact on eelgrass.

PLF argued that Friends' allegations of environmental impact were merely speculative, and that the Board was wrong to invalidate Hughes' permit.  We also told the court that by accepting Friends' environmental fears as truth, the Board illegally shifted the burden of proof to Hughes.  Indeed, that shift was apparent in the Board's decision, where it required Hughes to prove an absence of harm to eelgrass, instead of requiring Friends to actually prove the eelgrass impacts that they alleged.

Florida district court finds Individual Mandate unconstitutional

Author: Timothy Sandefur

Here's the decision. I have not yet read it. When I do, I will have post comments here.

Judge Vinson's decision is a very thorough, well-written, and interesting one, which I think every interested citizen should read. Judge Vinson clearly knew his opinion would be read by many non-lawyers, and it is written in an accessible style with much helpful discussion of the history of commerce clause precedent. In the end, he finds the Individual Mandate exceeds the commerce clause power because

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce,” it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power,” and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

Judge Vinson also has an excellent reply to those who argue that one cannot actually opt out of the health care market. This is the argument made by, among others, the Michigan and Virginia District Courts that upheld the Individual Mandate. They both said that the Individual Mandate isn't really a regulation of inactivity because you can't avoid needing health insurance, so you aren't really being inactive when you don't choose to buy insurance; you're really engaging in an activity which can be regulated. Judge Vinson answers that:

there are lots of markets --- especially if defined broadly enough --- that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile --- now partially government-owned --- because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business. I pause here to emphasize that the foregoing is not an irrelevant and fanciful “parade of horribles.” Rather, these are some of the serious concerns implicated by the individual mandate that are being discussed and debated by legal scholars. For example, in the course of defending the Constitutionality of the individual mandate, and responding to the same concerns identified above, often-cited law professor and dean of the University of California Irvine School of Law Erwin Chemerinsky has opined that although “what people choose to eat well might be regarded as a personal liberty” (and thus unregulable), “Congress could use its commerce power to require people to buy cars.” When I mentioned this to the defendants’ attorney at oral argument, he allowed for the possibility that “maybe Dean Chemerinsky is right.” Therefore, the potential for this assertion of power has received at least some theoretical consideration and has not been ruled out as Constitutionally implausible.

A related argument accepted by some courts is that the decision not to buy insurance has an effect, through supply and demand, on the price of, and therefor the interstate market for, insurance, and Congress can control that market--so it can force you to buy insurance. Judge Vinson's answer to that argument is clear and persuasive:

The problem with this legal rationale, however, is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that --- when aggregated with similar economic decisions --- affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not.... The important distinction is that “economic decisions” are a much broader and far-reaching category than are “activities that substantially affect interstate commerce.” While the latter necessarily encompasses the first, the reverse is not true. “Economic” cannot be equated to “commerce.” And “decisions” cannot be equated to “activities.” Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is “economic activity.” There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes.

...[I]f the decision to forego insurance qualifies as activity, then presumably the decision to not use that insurance once it has been obtained is also activity. The government acknowledged during oral argument in Virginia v. Sebelius that although people are required to buy health insurance under the Act, they are not yet required to use it.  But what happens if the newly-insured (as a class) do not seek preventive medical care? Because Congress found in the Act that the economy loses money each year “because of the poorer health and shorter lifespan of the uninsured,” it would seem only logical...that Congress may also regulate the “economic decisions” not to go to the doctor for regular check-ups and screenings to improve health and longevity, which, in turn, is intended and expected to increase economic productivity.

PLF says feds are illegally speeding in push for greenhouse regs for vehicles

Author: Ted Hadzi-Antich

Pacific Legal Foundation has called on the Obama Administration to halt its illegal rush to implement greenhouse emissions rules for heavy duty and medium duty vehicles.   The proposed standards should be submitted for independent scientific scrutiny, as required by law, and comply with mandated procedures set forth in the Clean Air Act, PLF told the administration today.

PLF’s statement came in formal comments submitted to the Environmental Protection Agency and the National Highway Transportation and Safety Administration. Those agencies have jointly proposed the first-ever federal rules to establish greenhouse gas emissions standards for medium and heavy-duty vehicles -- such as trucks, tractor-trailers and RVs. The agencies are conducting a formal rulemaking process with a period for the submission of public comments through today.

PLF’s comments emphasize that the agencies are getting way ahead of themselves.  Federal law requires that the proposed rules must first be submitted for independent scrutiny to EPA's blue-ribbon panel of experts, the Scientific Advisory Board — something that has not been done. Moreover, in trying to implement the Clean Air Act, EPA itself is violating the Act by refusing to comply with the procedures Congress put in place for promulgating these types of regulations. EPA is not above the law and must follow it, just like the rest us.

These proposed regulations would bring unprecedented new federal intrusion into the manufacturing process for and use of medium and heavy-duty vehicles. Not only could the rules have a devastating impact on interstate commerce by adding many thousands of dollars to the costs of new vehicles, they are being rushed through by EPA as part of EPA’s plan to put in place comprehensive controls on carbon dioxide emissions as quickly as possible.

In the process, EPA is ignoring legal requirements put in place by Congress to ensure that EPA’s rules are sound, necessary, and appropriate. The law, as well as the integrity of the regulatory process, demands that the Science Advisory Board be given the opportunity to review these regulatory proposals and that the procedural safeguards embedded in the Clean Air Act be respected, before any regulations are finalized.

Let's hope EPA gets the message.

 

 

Property rights buzz kill

Author: Natasha Greer

PLF has just filed a complaint against Humboldt County on behalf of Scott and Lynn Powell, who live near the Arcata-Euerka Airport. The County is forcing them to attain a building permit for their covered porch and carport, but is refusing to approve the permit until they surrender their property rights.

Florida ObamaCare case to be decided Monday!

Fox News is reporting that federal Judge Roger Vinson is expected to issue a decision in Florida's constitutional challenge to the Obama Administration's health care law on Monday. That is the case in which 26 states are plaintiffs.

An alfalfa update

Author:  Damien M. Schiff

I've reported here before on the legal controversy surrounding Roundup Ready Alfalfa, a controversy that went all the way to the Supreme Court last year in Monsanto v. Geertson Seed Farms.  The dispute was over the Department of Agriculture's decision to allow wide use of a genetically modified type of alfalfa, and organic alfalfa farmers' (and environmentalists') opposition to that decision.  In 2007, a federal district court overturned the feds' decision to allow broad use of the modified alfalfa, and enjoined any use until the feds completed a new environmental impact study.  The Supreme Court in Monsanto overturned that injunction, but did not authorize immediate use of the modified alfalfa.

Fast forward to this week, when the Department of Agriculture announced, following the release of a 2,000+ page environmental review document, that it was going forward with allowing broad use of modified alfalfa.  Keep on the look out for another lawsuit.

What Healthcare “Market”?

Author:  Anne Hayes

Progressives are often fond of claiming that the free-market, despite all evidence to the contrary, does not “work”– a term placed in quotes because it is not always clear what progressives consider success.   For the most part, however, free-market systems indeed “work” with respect to any number of goods and services so long as there are no artificial barriers to honest market competition.

In particular, many progressives have relished the failure of the American healthcare system to do what advocates assert are two typical hallmarks of a free-market capitalist system: to drive prices down as a result of market competition, and to encourage innovation and improvement by the introduction of new entrants to the market.  This failure, to them, proves that free-markets, in general, are unworkable, and that therefore a centralized-planning approach, such as that approached by Obamacare, provides the only valid remedy to our nation’s healthcare woes.

It cannot be gainsaid that healthcare costs have been steadily rising, and there does not seem to be a general improvement in how care is delivered.  However, progressives are simply on the wrong page when it comes to assessing the healthcare problem as one of insufficiently regulated “markets,” and they are especially wrong if they believe Obamacare’s prescriptions are destined to curb costs and improve care.

At the outset, it must be recognized that Obamacare’s crafters did little to identify or address the factors which actually affect the cost and availability of medical care.  Instead, they have institutionalized some of the problems with our current system that has lead to the healthcare morass we are now treading upon.  And that morass was borne out of government meddling in the market.

California’s Unfair Competition Law…is still unfair

Author: Timothy Sandefur

The California Supreme Court today decided a case involving Proposition 64—the initiative enacted in 2004 to scale back abuses of the state’s Unfair Competition Law (also known as section 17200). That law was so broadly written that it allowed people—or rather, plaintiffs’ lawyers—to sue businesses for virtually anything that they considered “unfair.” In fact, lawyers could sue even where the plaintiff had not actually been injured by whatever “unfair” act was at issue! Although defendants often ended up winning these cases, just showing up in court cost so much money that frivolous UCL lawsuits have become a serious burden on California businesses.

Voters therefore enacted Prop. 64, hoping to limit such lawsuits by requiring that the plaintiff at the very least show that he or she had “lost money or property” as a result of the allegedly unfair act. This very moderate amendment eliminated only some of the  most extreme perversions of the law—but, sadly, today’s decision has managed to reduce the strength of even the tepid language of Prop. 64.

How not to fight ObamaCare

Author: Timothy Sandefur

Opposition to the Obama Administration’s health care mandate has taken many forms; more than half of the states are now suing the federal government, and the House of Representatives recently voted to repeal the law. It’s gratifying to see the seriousness with which so many people are taking the constitutional issues at stake.

What’s not so pleasant is to see that a number of legislators are trying to revive the doctrine of “nullification”—a doctrine that has no foundation in the Constitution, is politically dangerous, and has no hope of success. Opponents of ObamaCare—insofar as they care about the actual Constitution—should refuse to participate in efforts to “nullify” this law.

What's more important, pot or property rights?

Author:  Damien M. Schiff

The afternoon prior to President Obama's State of the Union address, the nation's chief executive answered questions posted on YouTube.  The top ten questions all concerned the nation's drug laws and policies, especially as applied to marijuana.

What can one take away from this?  It seems to me that, for the YouTube generation, the availability of drugs is more important than many other foundational principles, such as limited government, or strong protection of private property rights.  One wonders whether, had YouTube been around in 1930, the majority of questions would have been about ending Prohibition.  I rather doubt it.  My sense is that back then Americans would have had a better sense of prioritization and a better grasp of what the essentials of a just and free society are.

Are the nation's drug policies immoral or ineffective, or both?  That's an important question, but is it today the most important question, or the one that the YouTube generation should be most concerned about?  Is it not fairer to say that these teens and twenty- and thirty-somethings should be as concerned, if not more concerned, with the general expansion of government and its spending, high taxes, anti-innovation policies, nationalized healthcare, and the like?  Perhaps the president's YouTube interlocutors are merely the modern instantiation of the Romans of old, satisfied with "bread and circuses."

The Ninth Circuit backtracks under Rapanos

Author:  Damien M. Schiff

Yesterday, the Ninth Circuit Court of Appeals issued an amended opinion in Northern California Riverwatch v. Wilcox, 620 F.3d 1075 (9th Cir. 2010).  The decision, originally issued last summer, concerned the scope of the phrase "under Federal jurisdiction" as it is found in Section 9 of the Endangered Species Act.  The amended opinion, in response to a suggestion by the United States as amicus curiae, addresses the old opinion's discussion, in dictum, as to whether the federal government can use the Rapanos Scalia plurality test, as well as the Kennedy concurrence test, to determine wetlands jurisdiction under the Clean Water Act.

Giant pensions and giant slaloms

Author: Harold Johnson

Well, that was quick. Only a week after oral argument, yesterday the Calif. Second District Court of Appeal ruled in the Orange County "retroactive" pension case.  The three-judge panel unanimously rejected the county supervisors' challenge to the whopping retirement benefit increases that their predecessors, in 2001, had showered on public safety employees, for work already performed under a previously agreed-to pension package.

PLF and the Fullerton Association of Concerned Taxpayers weighed in against the constitutionality of the benefit bonanza, and while our arguments may have been rejected they were not refuted.

Indeed, you have to run a slalom course around the case law to exclude these pension hikes from the requirement for voter approval of local-government debt. The court stressed that past cases applying the right-to-vote-on-debt rule have dealt with different facts. Well, yes, but the underlying dynamic is the same: taxpayers are faced with a long-term financial liability. That's what counts, that's why taxpayers deserved to say yes or no to the increases -- and the state Constitution (article XVI, Section 18) guarantees them that right.

By boosting pension benefits for employees' work in the past, the county created an immediate multi-year debt for taxpayers - - just as in the case of bonds or a purchase agreement for a building or a park. The legal precedents also say, explicitly, that you don't have to be able to precisely measure the amount of the liability in order for the voter-approval requirement to kick in.

The state Constitution gives voters a say before they can be saddled with this kind of long-term obligation. In Orange County, voters were denied that right when retroactive pension goodies were larded out to favored public employees, and that fundamental right was diluted again with yesterday's ruling.

With governments up and down California submerged in red ink, in large part because of reckless pension promises like those in Orange County, this would be an appropriate case for review by the state Supreme Court. The constitutional and financial implications are that profound.

What Frasier Crane would say about Dukes v. Wal-Mart

Author: Timothy Sandefur

The largest class-action lawsuit in history, Dukes v. Wal-Mart, has reached the U.S. Supreme Court, and PLF filed this friend-of-the-court brief today. (Here’s the brief Wal-Mart filed; the plaintiffs’ brief is due in February.)

D.C. court tosses Alan Grayson’s frivolous lawsuit

Author: Timothy Sandefur

A Washington, D.C., court decided on Friday to throw out a frivolous lawsuit brought by former Congressman Alan Grayson. He was suing AT&T because when customers don’t use the whole amount on their pre-paid calling cards, the company keeps the money instead of just turning it over to the government. Grayson, of course, wasn’t suing on his own behalf, but supposedly on behalf of victimized customers, and the question the court had to confront was whether someone can do that in Washington’s courts. Of course, they’ve long been able to do that in California’s courts, as my colleague, Deborah La Fetra, noted in a Washington Examiner article in July:

California’s disastrous experiment with gutting the rules of standing should flash warning signals to the judges who are considering Grayson’s case—and to the D.C. business owners and residents who would be the ultimate losers if he wins.

California’s Unfair Competition Law was a classic example of a consumer protection law that didn’t help consumers nearly so much as it enriched ethically challenged lawyers…. Lawyers who specialized in this lucrative practice would form “watchdog” or “consumer” front organizations, and scour public records on the Internet for ridiculously minor regulatory or legal violations by small businesses. Favorite targets were family-run restaurants, often owned by immigrants.

When a “mark” was identified, the unfortunate business would be notified that it was being sued.

The attorneys would follow up by contacting the owner and generously pointing out that a quick settlement would make things go away.

These litigation mills amassed huge sums by chiseling small settlements from thousands of intimidated business—all in the name of redressing “harms” that nobody had suffered.

Unfortunately, although the court of appeals threw Grayson’s case out on the grounds that he hadn’t even claimed anyone was actually defrauded, it did not impose a meaningful standing requirement; any plaintiff who simply claims in his complaint that the general public was harmed by something is still free to sue. Citizens and businesses in Washington, D.C., will therefore continue to suffer from frivolous lawsuits into the foreseeable future.

Here’s the brief PLF filed in the case.