What does the Bill of Attainder Clause say about newfangled punishments?

Three years ago, California businesses faced crippling liability in the wake of court decisions interpreting the state’s minimum wage laws. This year, the state legislature enacted Assembly Bill 1513, which allows businesses to avoid statutory liability if they promptly paid back wages in accordance with those decisions. Yet, to secure the support of a powerful union, the legislature crafted carve-outs to prevent two businesses — Fowler Packing and Gerawan Farming — from taking advantage of this law.

The carve-outs violate the Bill of Attainder Clause, which prohibits legislatures from singling out individuals for punishment. Today Pacific Legal Foundation filed this friend-of-the-court brief, which asks the Ninth Circuit to restore the Constitution’s robust protection against bills of attainder.

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Not everything should be a crime

Animas River spill 2015-08-06.JPGOver at The Daily Caller, I have an editorial discussing how the federal government’s hypocritical decision against prosecuting the EPA officials responsible for the Animas River spill highlights the urgent need to address overcriminalization.

The decision, made by prosecutors who wouldn’t hesitate to throw the book at ordinary people, was immediately criticized as hypocritical. “[T]here is one set of rules for private citizens and another for the federal government,” a letter from several Republican Congressmen noted.

The government treats its own differently from how it treats the rest of us. But we shouldn’t let that hypocrisy distract us from the bigger issue, which is that accidents shouldn’t lead to criminal charges regardless of who’s responsible.

As you probably know, EPA employees accidentally caused the spill when attempting to drain an abandoned mine to clean the toxin-laced water contained within it. Unfortunately, the cap on the mine burst, causing millions of gallons of water containing high levels of lead and arsenic to rush into a nearby stream, turning it bright orange. It was a terrible accident, but federal prosecutors correctly recognized that the EPA officials had no criminal intent. Unfortunately, as I explain in more detail in the editorial, federal prosecutors prosecute ordinary people for far less significant accidents, despite their lack of criminal intent.

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The politicization of the clean water rule

After a two year investigation, a House of Representatives oversight committee released a damning report today that documents blatant government abuse in the drafting and promulgation of the Corps and EPA’s rule defining “waters of the United States” that are subject to complete federal control under the Clean Water Act. Along with PLF, most of the States and scores of industry groups have challenged the rule as a violation of statutory and constitutional law.  This rule has become the “poster child” for government overreaching and double dealing.  Among other things, Corps officials opposed the rule declaring in internal memos that the rule is legally and scientifically insupportable.  And, a GAO audit reported that the government engaged in outright propaganda to drum up public support for the rule.  The new report fills in the blanks and underscores the need for more congressional oversight of federal rule making.  To whet your appetite, here is an excerpt from the executive summary:

The “Clean Water Rule,” commonly referred to as the “waters of the United
States” (WOTUS) rule, was signed by Environmental Protection Agency Administrator Gina McCarthy and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy on May 27, 2015 in a picturesque signing ceremony hosted by the National Wildlife Federation on the banks of Washington, D.C.’s Anacostia River. The process that led to the rule’s signing, however, was rife with legal shortcuts, predetermined conclusions, and politically-driven timelines.
The report can be read here.
Note: The challenge to the WOTUS rule is being litigated in the 6th Circuit Court of Appeals.  Opening briefs are due November 1.  Stay tuned ….


Global warming and bearded seals

A bearded seal (USFWS)

A bearded seal (USFWS)

On Monday, the Ninth Circuit Court of Appeals upheld the National Marine Fisheries Service’s decision to list a population of bearded seal. Dwelling in the frigid Bering Sea, the listed seal population is, by current numbers, doing quite well. Why then Endangered Species Act protections? Because the Service, citing the climate models of the IPCC and others, predicts that the seal’s ice floe habitat will be substantially reduced by 2095, and thus the seal needs protection now. That an agency can predict what will happen nearly a century hence is a proposition somewhat hard to accept. Yet the Ninth Circuit, following its own precedent as well as that of the D.C. Circuit, had no difficulty affirming it, relying mainly on the extreme deference that administrative agencies receive when engaged in purportedly scientific or technical decision-making. Of course, courts have no difficulty weighing in and taking sides in scientific disputes all the time, among private parties. That reveals, I believe, the courts’ deference to agency decision-making to be the consequence not of the courts’ belief that agencies can do a better job than the judiciary in deciding challenging issues, but rather of the courts’ reluctance, as a non-democratic institution, to second-guess democratic institutions. But are administrative agencies really responsive to the electorate?

Greetings from the Atlantic Center!


Your PLF Atlantic Center team

As the calendar moves through October, the Florida temperatures are cooling down but the work in the Atlantic Center is heating up!

On Thursday, our Director of Development Doug Kruse and I will speak at the Florida Farm Bureau‘s Annual Meetings in Orlando about the Clean Water Act, Endangered Species Act, and PLF‘s crusade to reel in the federal government’s efforts to control private property under the guise of those laws.

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Opening salvo in permafrost litigation

Last week, we filed our summary judgment brief in Tin Cup, LLC v. United States Army Corps of Engineers. At its most particular, the case challenges the Corps’ assertion of Clean Water Act authority over permafrost on our client’s property outside of Fairbanks, Alaska. But on a larger plane, the case contests the Corps’ practice of expanding its wetlands jurisdiction through the issuance of so-called regional “supplements” to the congressionally mandated 1987 Wetlands Delineation Manual. In Tin Cup’s case, the Corps asserted authority over some 200 acres of permafrost on Tin Cup’s property. The Corps contends that permafrost qualifies as a wetland. But the Corps can make that assertion only by relying on the 2007 Alaska Supplement to the agency’s nationally applicable 1987 Manual. Had the Corps instead used the standards for wetland delineation contained within the 1987 Manual, the agency would have concluded that permafrost cannot be regulated under the Clean Water Act.  Our brief argues that the Corps’ habit of expanding its jurisdiction through superseding “local rules” violates Congress’ direction that the agency operate under nationally applicable guidelines.

Weekly litigation report

Individual Rights – Equal Protection. In the long-running saga of Rothe Development, Inc. v. Department of Defense and Small Business, a small business is challenging the racial classifications in Section 8(a) of the Small Business Act as a violation of the Fourteenth Amendment guarantee of Equal Protection. That section sets a goal for the federal government to award construction contracts to historically disadvantaged individuals. The D.C. Circuit Court of Appeals rejected Rothe’s claim that the challenged statute creates racial classifications and that the court must apply a strict scrutiny analysis. On Wednesday of this week, October 19, Rothe filed a Petition for Rehearing and for Rehearing En Banc.  As Meriem Hubbard explains, PLF assisted Rothe’s attorney on the petition, and will continue to support Rothe as amicus if the a petition for certiorari is filed in the U.S. Supreme Court.

Individual Rights – Education Reform. The California Court of Appeal issued a disappointing decision on Monday in Anderson Union High School District v. Shasta Secondary Home School. The case concerns the extent to which non-classroom based charter schools may open resource centers in the county where they are located. Joshua Thompson explains that the court interpreted the California Charter Schools Act in a manner that results in an awkward distribution of permissible locations for these resource centers. As a result of the court’s decision, many home schooled children in the rural areas of California will not have the same opportunities to use public educational resources as students in more urban areas.

Victory for Nashville property owners and guests

In an important victory for economic liberty and champagneproperty rights, today, a judge in Nashville, Tennessee agreed that the Nashville Metro Council’s regulations of short-term rentals are unconstitutional.

Among other things, the ordinance banned any form of advertising short-term rentals with signage on the property, and capped the number of non-owner-occupied short-term rentals to three percent of the properties in each census tract. Last year, our friends at the Beacon Center sued Nashville on behalf of the Andersons—a family that periodically rents out their home via Airbnb—claiming the regulations violated the Anderson’s constitutional rights. In July of this year, PLF filed a brief in support of the Andersons’ First Amendment right to advertise their home and their Fourteenth Amendment right to equal protection. In August, Nashville saw the writing on the wall, and repealed the advertising ban.    Continue reading

Presentation at the Peace Palace

Peace Palace

The Peace Palace in The Hague

I gave a presentation earlier today at the Peace Palace in The Hague in the Netherlands. This was part of the 13th Annual Brigham-Kanner Property Rights Conference, sponsored by the William & Mary Law School and the University of Leiden. Each year practitioners and scholars gather to discuss trends in property rights and to honor a preeminent scholar in property law. This year’s honoree was Hernando de Soto, a Peruvian economist who has electrified the world with his research and books on how property rights and economic freedom are the best antidotes for poverty in the Third World. I was on a panel discussing the use of eminent domain and expropriation as a means of wealth transfer. In particular, I discussed the unfortunate fact that eminent domain in the United States often results in the taking of the homes of the poor and politically powerless for the benefit of the wealthy and politically connected. Kelo is the most notorious example of this trend, but there are many others.

This day 25 years ago . . .

Twenty-five years ago today, Pacific Legal Foundation submitted testimony to the House of Representatives on proposed revisions to the Army Corps of Engineers’ notorious “1989 Wetlands Delineation Manual.” At that time, the House Subcommittee on Water Resources was holding hearings on the re-authorization of the Clean Water Act. There was much controversy over how to delineate wetlands (plus ça change . . . ). Continue reading