The Government, right or wrong!

In remarks to the U.S. Senate in 1872, Carl Schurz said,  “My country, right or wrong; if right, to be kept right; and if wrong, to be set right.”  This is a worthy sentiment that is gaining some traction in Congress with the advent of a new Administration. Under the Congressional Review Act, federal legislators are reviewing federal regulations with an eye toward revoking illegal, redundant, or counter-productive rules and policies. The effort is long overdue but the responsibility for correcting the Country’s course should not stop with Congress.

In our system of government, the courts have responsibility to keep and set the Country right by enforcing the rule-of-law.  This provides a necessary check on overreaching legislation and overzealous enforcement by the political branches of government.  But many courts abdicate their role as arbiters of the law and defer, in almost knee-jerk fashion, to the Government’s interpretation of the law. Continue reading

PLF to testify at congressional hearing on how ESA burdens development

It is a busy week for PLF’s DC Center.

Our Executive Director Todd Gaziano will be speaking Wednesday at an event hosted by Senator Lee (Utah) to announce the release of an American Enterprise Institute paper coauthored by Todd and PLF trustee Prof. John Yoo. RSVP here.

Tomorrow, March 28th, I’ll be testifying on the impacts of Endangered Species Act consultation on economic development and infrastructure. My written testimony, which is available here, explains that consultation causes significant delays and increased costs, even in cases where the affected project would benefit species. The hearing before the House Committee on Natural Resource Subcommittee on Oversight and Investigations will be at 10am in Room 1324 of the Longworth House Office Building. Watch the live stream below!

Are all of Obama’s national monuments permanent? A new AEI paper says no

Bears EarsPresident Obama broke the record for the number of national monument proclamations he issued and the millions of acres of public lands he locked up for such monuments. A few weeks before he left office, President Obama abused the Antiquities Act of 1906 again to proclaim 1.35 million acres in Utah and 300,000 acres in Nevada to be new national monuments. White House officials claimed that both monuments were “permanent” because there was no express authority to reverse them.

As Professor (and new Pacific Legal Foundation trustee) John Yoo and I explained in a Wall Street Journal op-ed a few months ago, and here in Liberty Blog, Obama’s claim of permanence will be about as effective as the one by King Ozymandias in Shelley’s poem.

On Wednesday, March 29, the American Enterprise Institute will release a new paper John Yoo and I wrote, “Presidential Authority to Revoke or Reduce National Monument Designations,” which explains why presidential decrees are not “permanent” under our constitutional order, especially not pursuant to the Antiquities Act of 1906. That afternoon on Capitol Hill, Senator Mike Lee (R-Utah) is hosting an event in the Senate Energy and Natural Resources Committee Hearing Room on the release of our paper. Continue reading

Weekly litigation update — March 25, 2017

Oral argument in Murr

John Groen argues as Justices Breyer and Sotomayor look on.

We had our oral argument in Murr v. Wisconsin. It was a tough argument with lots of questions throughout the argument.  We trust our answers helped dispel some of that confusion.  All in all, it was a good argument and we made all our points with the Court. But, based on the questioning, this could be a close case. You can read the transcript here and a more detailed blog post here. You can listen to the oral argument here.  We expect a decision by the end of the June, though if the Court splits four to four, the Court may decide to wait for Justice Gorsuch’s vote, or at least rehear the case when he is on board.

Victory over another San Francisco scheme against landlords

In 2015 we had a victory in Levin v. City and County of San Francisco — our case where the City demanded landlords pay tenants 2 years worth of rent subsidies if the landlord takes a unit off the rental market. After that victory, San Francisco amended the ordinance by putting a cap on the amount of rent a landlord had to pay and giving landlords the right to “audit” a tenant’s rental payments for three years. Landlords sued again in Coyne v. City and County of San Francisco. We filed a friend of the court brief arguing that this scheme had similar problems to the ordinance in Levin. The trial court has now agreed and held the ordinance to be unlawful. For more, see our blog post here.

Opposition to overcriminalization of innocent mistakes

We filed this opposition to the WildEarth Guardians’ motion for summary judgment in WildEarth Guardians v. Department of Justice. This is the case where environmentalists are demanding that the Department of Justice drop its practice of not prosecuting people for severe penalties under the Endangered Species Act when it looks like the people involved made an honest mistake.  As our brief points out, if the government had the discretion to prosecute people for accidents, then we’d be liable for the harshest penalties if we accidentally stepped on an endangered spider, squashed a rare bug on a windshield, or went surfing within five football fields of a whale. For more about this case, visit our blog here. For more about the government’s policy, see our frequently asked questions here.

Florida case appealed

We filed this initial brief in P.I.E. v. DeSoto County. Here the county tried to take away permission it had already given to P.I.E. to excavate its property. As a result, lost over two million dollars in value when the DeSoto County Commission rejected the staff recommendation and denied the permit. We’ve taken over the case so we can argue that Florida state law provides remedies in a case like this. For more, see our blog post here.

Can a city threaten to remove police protection from you for voting to repeal a tax?

San Ramon, California

Police protection and other city services in California are funded in part by property taxes. But in a state where public employee salaries and pensions are hard to keep up with, some cities can’t live within the means which property taxes provide them. So they look for creative ways to extract more taxes from their residents, if possible without raising taxes on or reducing services to existing voters (who might respond at the ballot box).

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About that “superprecedent” thing

During this week’s Senate Judiciary Committee hearing on Judge Gorsuch’s nomination to the Supreme Court, Ranking Member Diane Feinstein repeatedly used the term “superprecedent” to describe the Supreme Court’s 1973 decision in Roe v. Wade. Her line of questioning was aimed at badgering the judge into agreeing with her that Roe enjoys a higher degree of precedential value than plain-old precedents do.

As you can intuit from the video, Judge Gorsuch did not seem comfortable using the term “superprecedent” although this does not appear to have anything to do with Roe. He does agree that the decision has been relied upon repeatedly by the Supreme Court and the lower federal courts. It is the word “superprecedent” at which he appears to balk.

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DeSoto County takes bite of P.I.E.; P.I.E. bites back

I was told this was a Florida property regulator.

When the Florida Legislature enacted the Bert J. Harris, Jr., Private Property Rights Protection Act, it explained that the law provided a remedy to landowners unfairly affected by government regulation on their property. The law says:

When a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property, the property owner of that real property is entitled to relief, which may include compensation for the actual loss to the fair market value of the real property, caused by the action of government.

PLF‘s new case in Florida, P.I.E., LLC v. DeSoto County, represents a perfect example of why the Legislature created the law.

An experienced contractor, Tom Finney decided to mine his own property for sand
and fill to save money on septic work costs where he needed fill dirt for the jobs. He
asked DeSoto County government’s Planning Department for instruction on where to purchase property in the county for that purpose, and the County told him where to find it and then staff approved the site he then bought on their say-so.

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PLF defends against overcriminalization under the Endangered Species Act

William Blackstone famously said “it is better that ten guilty persons escape than one innocent suffer.” Today, the criminal law honors that venerable principle by forbidding anyone from being criminally punished unless they commit an illegal act with a blameworthy state of mind. That’s why mens rea (or guilty mind) is an element of essentially all crimes.

PLF defends this principle in an Arizona case in which environmental groups seek to throw out this essential criminal justice protection in their blind pursuit of protecting endangered species. They argue that the government should be able to imprison anyone who causes “take.” In other words, you should go to jail if you do anything that accidentally harms a species listed under the Endangered Species Act, even if you didn’t know that your actions would harm a species or which species. The argument would effectively criminalize your inability to recognize every listed species.

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San Francisco’s attempt to extort landlords denied…again

Last week we announced that the 9th U.S. Circuit Court of Appeals rejected San Francisco’s attempt to undo PLF’s victory on behalf of San Francisco landlords in the Levin case. In that case, landlords who wished to remove their property from the rental market under California’s Ellis Act were subject to a San Francisco ordinance that attempted to force landlords to pay their tenants an amount equal to the difference between the monthly rent they charged (often low due to rent control policies) and the current market rent, multiplied by 24 months. The challenged law required some landlords to pay out hundreds of thousands of dollars, and in some cases, millions, just to stop being landlords. Fortunately, that law was held to be unconstitutional.

In response to the lower court decision in the Levin case, San Francisco amended its ordinance and capped the amount landlords could be forced to pay at $50,000 per rental unit. Martin Coyne and other landlords then challenged the revised ordinance, and last year, PLF filed an amicus brief in their support. I discussed the details of that case and brief here. Tuesday, in Coyne v. City and County of San Francisco, the California Court of Appeal ruled in favor of the landlords and invalidated San Francisco’s second attempt to force landlords to pay for a problem they didn’t cause. Continue reading

Briefing complete in challenge to access regulation

We recently filed our Ninth Circuit reply brief in Cedar Point Nursery v. Gould. The case involves a challenge to the Agricultural Labor Relations Board’s access regulation, which allows union activists to invade private property for three hours a day and 120 days per year.

In its opposition brief, the ALRB argued that the access regulation survives constitutional scrutiny because it contains certain time, place, and manner restrictions (e.g. union activist could not access private property for more than three hours a day). The board’s argument is unpersuasive. Government action that takes private property for the benefit of third-party invaders categorically triggers the protections of the Takings Clause. Time, place, and manner restrictions may impact the scope of “just compensation,” but they do not relieve the government of its duty to compensate the property owner in the first place.

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