The Federal Government filed its opposition brief to our petition for rehearing en banc today—one week early. The opposition is more interesting for what it doesn’t say than for what it does.
We have previously blogged about the latest redistricting controversy to reach the Supreme Court. In these two combined cases, styled Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, the plaintiffs contend that the redistricting plan for the Alabama Senate and House of Representatives is an unconstitutional racial gerrymander and unlawfully dilutes black voting strength in violation of Section 2 of the Voting Rights Act. The three-judge district court rejected both claims. As to the racial gerrymandering claim, the majority held that the plaintiffs had failed to prove that race was the “predominant factor” in the redistricting decision. Alternatively, the court found that even if race was the predominant factor, Alabama’s use of race satisfied strict scrutiny because it was narrowly tailored to comply with Section 5 of the Voting Rights Act.
Today, PLF filed an amicus curiae brief arguing that the Court should discard the requirement that plaintiffs prove race was the “predominant factor” in redistricting. We argue that the predominant factor standard is inconsistent with the Supreme Court’s repeated holdings that race may not be a factor in any official decisionmaking. Unfortunately, the prevailing law has permitted consideration of race to become legitimate in redistricting debates, so long as it is coupled with “traditional” districting criteria such as contiguity and incumbency protection. This is directly contrary to the Equal Protection Clause’s mandate that government must treat people without respect to race. Because it is undisputed that Alabama used race at least to comply with Section 5, we argue that the Court should apply strict scrutiny to the redistricting acts.
Fox Business Network’s John Stossel devotes his program tonight (at 9pm Eastern) to the question, “Does anyone care about the Constitution anymore?” I join Stossel to argue the yes side of that question. Here’s a little preview, and I’ll have some further thoughts here on the PLF Liberty Blog after the show airs.
“Developments in the last ten days make it more likely that the entire U.S. Court of Appeals for the D.C. Circuit will agree to hear the leading challenge by the Pacific Legal Foundation (PLF) to the Obamacare individual-mandate penalty — and whoever does not prevail at this level will have a compelling case to take to the Supreme Court.” So begins my op-ed that National Review Online just posted on its homepage.
In it, I link to posts by Paul Beard, Professor Randy Barnett, and Tim Sandefur on the recent developments in our case on behalf of Matt Sissel, challenging the constitutionality of the individual-mandate penalty as a violation of the Constitution’s Origination Clause. Among those developments was an order from the D.C. Circuit last week, instructing the Obama Administration to respond to PLF’s petition for rehearing, and an impressive set of amicus briefs supporting PLF’s petition for rehearing filed yesterday, which help confirm that this is no ordinary litigation. Continue reading
The California Supreme Court today declined to hear several petitions for review relating to the High Speed Rail project, including Pacific Legal Foundation’s (PLF’s) petition opposing the sale of $8.6 billion in California High-Speed Rail bonds. PLF represents, free of charge, the First Free Will Baptist Church of Bakersfield in this litigation.
PLF issued this statement in response to today’s announcement:
“This is a disappointing development for the interests of California taxpayers and for the cause of integrity and common sense in government,” said PLF attorney Harold Johnson. “The appellate court said that the High Speed Rail project is still in ‘flux’ so it’s too soon to judge whether it conforms with what voters authorized when they passed Proposition 1A in 2008. But the appellate court also ordered that $8.6 billion in bonds for the project be approved by the judiciary, so the bonds can be sold. That’s a self-contradictory ruling, and it now stands, because the Supreme Court has declined to review it. This means that billions of dollars in bonds can be sold, right now, even before we know what the money will be spent on, and even before we know if the final shape of the High Speed Rail project is true to the voters’ will and the state Constitution’s requirements. In other words, more than $8 billion will be borrowed on the taxpayers’ credit card, for what amounts to a pig in the poke. That’s bad public policy, and I believe it’s wrong as a matter of constitutional law.”
PLF attorneys filed their final brief in Daniel and Maria Levins’ challenge to the City of San Francisco’s outrageous Tenant Relocation Ordinance. The Ordinance requires landlords who wish to remove their property from the rental market to pay their tenants the difference between the tenant’s existing, rent-controlled rate and the cost of acquiring a comparable unit at open market rates, for two years. That payment obligation comes on top of a pre-existing ordinance that already obligates San Francisco landlords to pay their tenants several thousand dollars to cover moving expenses if a landlord withdraws property from the rental market.
For PLF clients Daniel and Maria Levin, the new Ordinance requires them to pay more than $117,000 just to take back the downstairs, one-bedroom portion of their house so they can use it for family and friends. For PLF’s other client Park Lane Associates, the Ordinance requires it to pay more than a million dollars to tenants of its apartment building in order to exit the rental business. PLF attorneys filed a lawsuit in July seeking injunctive and declaratory relief and challenging the Ordinance as unconstitutional under the Fifth and Fourteenth Amendments of the U.S. Constitution. The lawsuit also alleges the Ordinance violates the state’s Ellis Act, which guarantees to property owners the right to take property off the rental market. Continue reading
The Texas Supreme Court is currently considering one of the most important contract cases in recent years. In Plains v. Torch (our shortened name, for the sake of convenience), two oil companies dispute the rightful owner of a 43 million dollar award that one of the parties (Plains) obtained from the federal government. Both parties argue vigorously about the meaning of the contract, but both agree that the contract should decide the winner of the dispute. Yet the lower court sent this case to a jury so that jurors could consider an equitable “money-had-and-received” claim, and distribute 43 million dollars guided not by the words of the contract, but by vague philosophical notions of “good conscience” and “abstract justice.”
Pacific Legal Foundation filed an amicus brief today asking the Texas Supreme Court to decide this contract claim by looking at the contract itself. A contrary interpretation that uses abstract justice to decide contract cases would demolish the expectation interests of the parties and is not a tenable rule for law or commerce. The freedom of contract is the right of any person to form a mutually beneficial agreement with anyone else. And that right should not be limited by a single quote from a single philosopher–or even twenty quotes from twenty philosophers.
In the midst of a struggling economy, California has decided to crack down on the nefarious handymen that you hire to fix your stuff. Thanks to a new California law, honest people trying to scrape by doing repair or construction work now face greater barriers to feeding their families.
California has long required costly licenses for construction contractors. For decades, the “Joint Enforcement Strike Force” (a group that sounds more like a legion of stormtroopers than a gaggle of nosy bureaucrats) has been “protecting” consumers from choosing who they want to hire. But the large contractors who might have to compete against unlicensed scallywags have asked the California government to do more. The state responded with a law that will make the most hardened Craigslist repair guy tremble.
One group in the State of Washington thinks so. White female contractors are threatening to sue that state’s department of transportation if they aren’t given preferential treatment based on their race and gender.
The commotion stems from Washington’s implementation of the infamous federal Disadvantaged Business Enterprise (DBE) program. That program was created by Congress to remedy intentional discrimination against minority- and women-owned firms on federally funded public transportation construction and engineering contracts. And therein lies the problem: Washington admits that it does not have evidence of discrimination against white women-owned firms.
A coalition of congressional leaders and states have filed friend of the court briefs in support of our case challenging the constitutionality of Obamacare under the Constitution’s Origination Clause. In July, a three-judge panel of the D.C. Circuit Court of Appeals rejected our lawsuit, holding that the Individual Mandate may be a tax, but it isn’t a “bill for raising revenue,” because its “primary purpose” is to force people to buy health insurance, rather than to raise money for the government. We’ve asked the entire D.C. Circuit to rehear the case, pointing out that this vague “primary purpose” test has no foundation in the precedent, and would allow Congress essentially to ignore the Origination Clause at will.
Senators John Cornyn and Ted Cruz have filed a brief, co-signed by Georgetown law professor Randy Barnett, which points out that the “primary purpose” test is incompatible with what people understood the Constitution to mean when it was written and ratified. Under the original public meaning, the term “bill for raising revenue” was understood to mean any law that’s passed solely under Congress’s taxing power—and according to the NFIB v. Sebelius decision from two years ago, Obamacare is just such a law. It wasn’t an exercise of any Congressional power other than the power to tax—and therefore, it should have started in the House, as the Constitution’s authors and ratifiers expected. You can read that brief here, and read more about it at The Volokh Conspiracy here.
In another brief, House Majority Leader Kevin McCarthy, House Majority Whip Steve Scalise, and the Judicial Education Project, argue that “if anything is a bill for raising revenue, the ACA is.” As they point out, that 2,000+ page bill is chock full of taxes; everything from a surtax on investment income to an excise tax on indoor tanning salons, to a fee on pharmaceutical importers. All of these put money into the general fund, to be spent however Congress chooses, and are therefore taxes, not fees or penalties or anything else. Thus they should have originated in the House. Worse, the panel decision—by holding the ACA exempt from the Origination Clause because its “primary purpose” is to control behavior—“turns the Constitution on its head,” because it “would make the Clause entirely inapplicable to the very taxes most threatening to individual liberty.” You can read that brief here.
A third brief, filed by the states of Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Kansas, Nebraska, South Carolina, South Dakota, Texas, and West Virginia, argues not only that any law passed solely under Congress’s taxing power must be a “bill for raising revenue,” but that the Senate’s power to “amend” House-created bills cannot include the power to completely gut them and substitute entirely different language. Such a procedure would make the Origination Clause “a mere paper tiger.” Yet that is just what happened in this case. You can read that brief here.
Finally, 43 members of the House of Representatives have filed another brief, pointing out that the panel’s decision conflicts with precedent regarding the Origination Clause, and that the tax imposed by Obamacare is not just “incidental” to a law enacted for “other purposes”—on the contrary, the Individual Mandate is just what the founders were concerned about when they wrote the Origination Clause: the abuse of Senatorial power to violate individual liberty free of the democratic accountability that disciplines the House of Representatives. Dividing the power to tax between the Senate and the House, these amici point out, is just as important as dividing other powers between the three branches of the federal government, or dividing power between the federal government and the states. You can read that brief here.
We’re grateful for the support of our amici, and we hope that the D.C. Circuit will choose to reconsider this case and apply the Constitution’s carefully designed restrictions on the power to tax.