Yesterday, Harvard University and the University of North Carolina were sued over their race-based admissions practices. The complaints (here and here) describe, in detail, the divisive use of race at both universities.
I joined our friends on the Armstrong & Getty Show this morning to talk about PLF’s recent victories in the Utah prairie dog case and the SDS Family Trust case against the Coastal Commission, as well as our ongoing challenges to Obamacare. If you missed it, you can listen to the podcast here.
Last Friday, PLF and the Cato Institute filed an amicus brief in another attempt to get the Supreme Court to finally overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City. Frequent readers of the Liberty Blog will recall that Williamson County requires property owners to bring their Takings Clause claims in state court in order to “ripen” them for review in federal court. However, because of traditional doctrines like claim and issue preclusion, federal courts cannot hear claims that were already raised or could have been raised in state court. This leaves property owners without an avenue to ask the federal courts to protect their constitutional property rights.
The newly elected 114th Congress will take office in January. Amid the political commentary surrounding this month’s elections, many talking heads have discussed whether the nation will relive another government shutdown as Republicans in the legislative majority seek leverage over President Obama’s Democrats who control the executive branch. Senator McConnell has assured the media this will not occur, while Speaker Boehner has left himself room to maneuver on the question.
Most look at this question from the perspective of whose political fortunes a shutdown would advance or harm. This discussion is troubling. Too many presume the executive branch is owed the current level of funding, and has an inherant right to decide how to spend money it taxes and borrows ad infinitem. That so many think of the power of the purse as a tool for petty gamesmanship reflects a long history of both parties refusing to make hard budget choices and surrendering their authority to the administrative state.
People for the Ethical Treatment of Property Owners is a group of Utah property owners and local government that pushed back against unconstitutional federal regulations that barred them from building homes, starting businesses, and, in the case of the local government, protecting an airport and cemetery from a thriving rodent population. As reported two weeks ago, a federal judge agreed with them, issuing an unprecedented ruling enforcing the Constitution’s limits against the Endangered Species Act’s incredibly broad prohibitions. This video explains what this important decision means for both the Utahns that have long suffered under the Utah prairie dog regulations and the rest of us who care about constitutionally limited government.
Professor Jonathan Gruber’s been getting a lot of bad press lately for his repeated acknowledgments that advocates of Obamacare lied to the American people in order to get the bill passed. These are being treated as “smoking gun” statements, or as “confessions,” which seems odd to me, at least, because I thought it was pretty well known how much of Obamacare is a fabrication.
But laying that aside, it’s worth emphasizing that these lies of which Prof. Gruber was so proud did not work. For instance, Prof. Gruber’s statement that “lack of transparency…was really, really critical to getting the thing to pass” because of “the stupidity of the American voter” ignores the fact that the American voter wasn’t fooled by the lies and obfuscation. Most Americans have never favored Obamacare, from day one. They voted for the presidential candidate who opposed the Individual Mandate, and when they had the opportunity, chose a Republican to replace Ted Kennedy in the Senate in hopes of stopping the bill from becoming law. Only parliamentary trickery, in the middle of the night on Christmas Eve, managed to get the bill enacted. And ever since, the majority of Americans have not only never supported the law, but they’ve grown more opposed to it over time. Maybe that’s why the Democratic Party has been “hollowed out” lately.
Meanwhile, litigation continues over a variety of other problems with the law.
Clean Water Act
This week, we submitted comments on the Army Corps of Engineers and EPA’s proposed rule redefining the term “waters of the United States” under the Clean Water Act. The rule, if adopted, would be the largest expansion of power ever proposed by a federal agency. It would give the Federal Government regulatory power over all waters in the United States, except only a handful of water features like ornamental ponds and swimming pools. PLF’s comment letter explains how the proposed rule expands federal jurisdiction in way that is inconsistent with the Clean Water Act and precedents interpreting it.
Equality Under the Law Project
The Fifth Circuit Court of Appeals denied Abigail Fisher’s petition for rehearing en banc in Fisher v. University of Texas, involving a constitutional challenge to the University of Texas’s race-conscious admissions policy. Judge Garza filed a short dissent reiterating the points he made in his panel dissent. PLF, joined by our friends at the Center for Equal Opportunity, Reason Foundation, Project 21, and the Individual Rights Foundation had filed an amicus brief urging the full court to take the case. The case is likely making its way up to the U.S. Supreme Court. Continue reading
As readers well know, the Affordable Care Act (ACA) imposes all sorts of new restrictions on the types of health insurance policies that can be bought and sold. Naturally, this means that a lot of people who liked their health insurance plans can’t keep their health insurance plans—no matter what politicians promise. The ACA has made those plans illegal, forcing insurers to take the nonconforming plans off the market.
Soon after these regulations went into effect, the Executive Branch realized that they were very politically unpopular. But rather than repealing the law, or even urging Congress to formally change it, the Administration decided it would just ignore those inconvenient provisions instead. And so the President announced that the Federal government would no longer enforce the restrictions on health insurance policies, and instead leave it up to the states to decide whether or not enforce them.
This week, we submitted, on behalf of the Riverside County Farm Bureau and the Center for Environmental Science, Accuracy, and Reliability, a petition to delist the Stephens’ kangaroo rat from the Endangered Species Act. The petition is based on a new population analysis by CESAR scientists which demonstrates that prior rat studies have considerably underestimated the rat’s dispersal ability, and thus grossly overestimated the threats of habitat fragmentation and limited genetic exchange. The petition raises more than merely an academic question. Protections for the rat have impeded adequate fire prevention efforts, in addition to imposing the usual heavy restrictions on the productive use of private property. Just a few years ago, the United States Fish and Wildlife Service itself admitted that the rat is doing better today than at listing. Let’s hope that the Service continues to acknowledge that fact by granting our delisting petition.
For years, environmental activists have sought to expand the scope of the Endangered Species Act by distorting the standards for listing wildlife populations as threatened or endangered. PLF has consistently opposed illegal expansion of the ESA. The bald eagle is a case in point.
The bald eagle was listed as a protected species in the lower 48 States under the Endangered Species Act in 1978. Fortunately, by 1999, the eagle had sufficiently recovered for U.S. Fish and Wildlife Service biologists to recommend the delisting of the American icon. However, the eagle languished on the protected list for years without any action by the Service. Strict regulatory restrictions on land use continued although the Service had determined the eagle no longer qualified as a threatened species under the ESA and would continue to be protected by the Bald Eagle Protection Act and the Migratory Bird Treaty Act, even after delisting. When bald eagle populations had improved from approximately 500 to 10,000, Pacific Legal Foundation filed suit in federal court to have the eagle declared recovered. In response to a court order, the Service took the eagle off the list of threatened or endangered species in 2007.
After the delisting, the Center for Biological Diversity and Maricopa Audubon Society petitioned to list the Sonoran Desert population of the bald eagle as a threatened or endangered Distinct Population Segment (or DPS). The DPS policy requires the agency to determine (1) if the population is distinct; (2) if the population is significant; and (3), if the population is both distinct and significant, whether the population is threatened or endangered.
Early in 2010, the Service determined the Sonoran Desert population did not meet the standard for a DPS and would not be listed. CBD and Audubon sued in Arizona District Court arguing that the population should be listed because it is “unique.” We filed an amicus brief arguing that uniqueness is not the test for Distinct Population Segments and adopting such a test could justify the listing of virtually any separately identifiable population because such a population is unique by definition.
The Court held the DPS determination was flawed because it did not consider the latest information. On remand, the agency considered all relevant information and came to the same conclusion as before; the Sonoran Desert population of bald eagles is not a DPS warranting listing under the ESA because the small population was not significant (i.e. critical) to the bald eagle population as a whole. CBD and Audubon reprised their challenge to the agency decision, but recently the court held the line and rejected plaintiffs’ argument that the Sonoran Desert population was significant because it was unique. The court agreed with PLF that the ESA should not be expanded to cover every discrete population of any species.