A good day for students’ school choice in Florida

Yesterday, the Florida Supreme Court rejected a union’s lawsuit challenging Florida’s tax credit scholarship program, and a Florida appellate court rejected a school district’s claim that charter schools violate the state constitution. These decisions protect K-12 students across the state.

Florida’s tax credit scholarship program allows businesses to get dollar-for-dollar tax credits for donations to organizations that distribute scholarships for children to attend private K-12 schools. To be eligible for the scholarships, a child must live in a household that earn up to 2.6 times the federal poverty level. Students may receive scholarships of up to $5,886, which is 82% of the state’s portion of per-pupil funding. Last school year, 78,664 children attended private schools with scholarships from the tax credit program. Even though study after study has confirmed that school choice programs like this improve outcomes for students in public and private school, unions continue to fight them. Continue reading

Water Transfer Rule upheld

Catskill Mountains, by Thomas Cole

Yesterday, the Second Circuit Court of Appeals rejected an environmentalist challenge to a 2008 EPA rule exempting water transfers from Clean Water Act permitting requirements.* In Catskill Mountains Chapter of Trout Unlimited v. EPA, the court held that EPA’s so-called Water Transfer Rule—which exempts the transfer of water from one navigable water to another from permitting requirements—reasonably interprets the pertinent but ambiguous provisions of the Clean Water Act. It therefore is entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, a seminal 1984 Supreme Court decision which established the modern framework for judicial review of administrative agency interpretation of statutes. Under that framework, courts reviewing agency interpretations of statutes must accept those interpretations, even if they are not the “best,” so long as they are “reasonable.” Continue reading

Do minor bureaucrats tell federal judges what to think?

Last week PLF filed this amicus brief in the Supreme Court of the United States in Gloucester County School Board v. G.G. The question in this case is whether federal judges interpret federal law, or whether low level agency bureaucrats do. PLF takes the position that judges have the Constitutional responsibility to independently read and interpret federal law, as a check on the executive agencies whose Constitutional role is to enforce the law.

The context of that question in this case is whether federal law requires local schools to allow transgender students to use the restroom of their choice, or whether it allows those schools to require all students to use the restroom of their biological sex. This topic is one of ongoing public debate, and reasonable minds can disagree on how to best accommodate transgender students. But one thing is certain: federal law does not dictate how local school districts resolve this difficult question.

But in this particular case, a low level official in the federal Department of Education wrote a private letter to the Gloucester County School Board in North Carolina, telling the district that in his opinion, the federal law which protects the ability of schools to provide sex segregated restroom facilities requires that schools allow transgender students to use the restroom of their choice. While no reasonable reading of the statute or implementing regulations supports this opinion, the lower federal court decided the case in favor of the government, on the ground that the Acting Deputy Assistant Secretary for Policy (yes, that is a thing in the federal government) has the power to tell the court what federal law requires.

Our brief argues that it is the exclusive responsibility of the federal courts to interpret federal law, and that the assignment of this responsibility to the judiciary in the Constitution is part of the essential separation of powers that checks the power of the federal government and protects individual liberty. The brief also surveys the long history of the Education Department’s unilateral and extralegal expansion of its authority over collegiate and even high school education in the United States, through methods like the private letter at issue in this case. We call on the Supreme Court to hold that it and the lower federal courts have a responsibility to independently interpret the requirements of federal law, and not minor bureaucrats.

In the words of Chief Justice Marshall, as they appear in a plaque at the Supreme Court of the United States

Washington Supreme Court to consider the limits of the public trust doctrine

The Washington State Supreme Court is set to hear arguments next month in Chelan Basin Conservancy v. GBI Holding Co., which is a very important and far-reaching case concerning the public trust doctrine.

Broadly stated, the public trust doctrine holds certain waters open to the public for commerce, navigation, fishing, and recreation, regardless of who owns the submerged lands. The doctrine—which finds its origins in Roman law’s recognition the land beneath the sea is unsuitable for private use—directs the sovereign to manage and administer waters in a manner that does not substantially impair the public rights.

Over the years, however, environmentalists have tried to convince courts to expand the “public trust doctrine” in order to give the public (i.e., activist groups) a right to veto any private activity that could potentially impact water. Continue reading

Can the government define away your property?

The U.S. Supreme Court heard an oral argument recently that would be more at home in a Kafka novel than a real court transcript. In Nelson v. Colorado, the Court is considering whether Colorado can force an exonerated individual to prove her own innocence to retrieve the fines and fees she had to pay because of her conviction.

Bizarrely, the court and the advocates spent most of the time arguing over whether these exonerated people had any interest in the money that they shelled out because of their convictions. The solicitor general argued that the money that the state takes from criminal convicts becomes the state’s forever, even if their conviction is later overturned. He basically argued that the state could deem property to no longer be yours with a wave of the wand. At the climax of this surreal argument, Justice Breyer asked whether the state could just decide to keep a $15 million criminal fine even after the defendant was exonerated. The solicitor general said yes. Thankfully, the Court didn’t seem to bite on that point.

To read more about the deeper legal issues at play in this important case, check out my op-ed just published by the San Francisco Daily Journal and the amicus brief we filed with the Court.

Supreme Court denies review in Bennie v. Munn

This morning, we received disappointing news that the Supreme Court denied our cert petition in Bennie v. Munn.

PLF attorneys represent Bob Bennie, a financial analyst and Tea Party leader in Nebraska. Bennie was targeted for retaliation by state financial regulators because he expressed political viewpoints that they didn’t like.

The issue in the case is whether an appellate court should conduct independent review of a trial court’s disposition of Bennie’s First Amendment claim or simply rubber stamp the trial court opinion. The issue is important, and the court of appeals viewed it as “likely [] dispositive” to the outcome. Yet the Supreme Court denied review.

Continue reading

Court should reject government double speak in jaguar rule

In 2014, the federal government designated thousands of acres in New Mexico as “critical habitat” for the jaguar. The designation is absurd, because as cat-lovers know, jaguars prefer the wet, tropical climates of Central and South America forests, to the dry, arid wilderness of the Southwest. The designation should also trouble liberty-lovers, because it violates the limits of the Endangered Species Act. That’s why PLF sued the U.S. Fish and Wildlife Service on behalf of New Mexico Farm & Livestock Bureau, New Mexico Cattle Growers’ Association, and New Mexico Federal Lands Council. Friday, we filed our reply brief which explains why legal precedent and the statutory text require the court to overturn the illegal designation.

The Endangered Species Act limits critical habitat to land that is either “essential for the conservation” of the species, or was “occupied” by the species when when it was first listed as endangered. No area of New Mexico qualifies. There is zero evidence that jaguars actually occupied New Mexico in 1972—not even a single track or sighting in the entire state between 1937 and 1994. Yet the government claims two areas in New Mexico were “occupied” in 1972. It’s evidence? One sighting in each area—twenty and thirty years after 1972. Continue reading

Oral argument on NCAA’s anti-felon policy

The NCAA prohibits felons from coaching in sponsored basketball tournaments. Dominic Hardie, a black basketball coach, sued the NCAA for racial discrimination. But Hardie doesn’t allege intentional discrimination. Instead, he’s suing the NCAA under a theory of liability known as disparate impact.

One problem: It’s an open question whether Title II of the Civil Rights Act even countenances disparate impact liability. We contend that it does not. Last Wednesday, the Ninth Circuit heard oral argument in the case.

Continue reading

Weekly litigation report — January 14, 2017

  • Supreme Court grants cert in WOTUS rule case
  • Supreme Court grants review in freedom of contract case
  • Economic liberty case argued at Oregon Supreme Court
  • Warning over manatee listing
  • Brief filed in mobile home park extortion case
  • Non-native wolves are not endangered 
  • Support for hair braiders
  • Alaskan wetland case filings
  • Amicus brief in Drakes Bay case against California Coastal Commission
  • Should courts defer to an agency opinion letter interpreting a regulation that interprets a statute?
  • Supreme Court denies review in wetlands-by-proxy case

Supreme Court grants cert in WOTUS rule case

The Supreme Court granted our writ of certiorari in National Association of Homebuilders v. Department of Defense, a case challenging the Waters of the United States rule. At issue in this particular case is whether a challenge should be brought in a federal district court or directly in a federal Court of Appeals. While this may seem like a technicality, the decision will be important in determining how the carefully the courts will examine the government’s justifications for this rule that vastly expands federal jurisdiction over wetlands, and some not very wet lands. Our petition was filed on behalf of seventeen organizations across the country. For more, see our petition here and our blog post here and our press release here.

Supreme Court grants review in freedom of contract case

The Supreme Court granted certiorari in three cases that raise the same issue: whether the National Labor Relations Act, which protects workers’ rights to engage in “concerted activities” for their mutual benefit, trumps the Federal Arbitration Act’s protection of the freedom of contract that allows employers and employees to agree to resolve their workplace disputes in individual arbitration (meaning: no class actions). We filed this amicus brief in one of the cases, Epic Systems Corp. v. Lewis, urging the Court to take up the case. For more, see our blog post here.

Economic liberty case argued at Oregon Supreme Court Continue reading

Cert denied in Foster v. Vilsack

Earlier this week the Supreme Court decided not to hear the Arlen and Cindy Foster’s case against the U.S. Department of Agriculture, over the Department’s illegal determination that their farm contains a federally protected wetland. The petition asked the Supreme Court to decide whether judges should interpret federal law, or whether they should allow junior federal employees to interpret it conclusively for them.

The absurd bureaucratic interpretation in this case was how big a “local area” is under a federal law that requires the Department to limit its wetland investigations to the “local area” surrounding any given farm. According to a junior Department employee, the “local area” is the surrounding 11,000 square miles:

But, using the same Department handbook, a “local area” could include parts of Virginia, North and South Carolina, George, Florida, Alabama, Mississippi, Louisiana, and Tennessee. Some local area.

Under this obviously unreasonable interpretation of “local area,” the Department looked at a wetland research site more than 30 miles from the Fosters’ property, and decided that because that remote site is a wetland, so is a wet spot on the Fosters’ farm. Sadly, the lower federal court simply took the federal worker’s word for it, instead of exercising its constitutional responsibility to interpret the law independently.

Unfortunately, the Court decided not to hear the case, but PLF will continue to argue that judges have an independent duty to determine the requirements of federal law, and should not defer to the clearly unreasonable legal opinions of bureaucrats.