Georgia’s Certificate of Need laws harm patients

Usually a medical practice that provides innovative, cost-effective, and relatively less invasive care for patients would be seen as a benefit to the community it serves. But that is not the case in Georgia, where Women’s Surgical Center, LLC, has had to fight the state’s anti-competitive Certificate of Need (“CON”) laws in order to expand their practice. Today, PLF filed a friend of the court brief at the Georgia Supreme Court in support of Women’s Surgical and their fight against Georgia’s CON laws.

Women’s Surgical specializes in conducting outpatient procedures for traditionally inpatient surgeries.  Their expertise allows them to provide medical care for women that is less expensive and less invasive than other medical practices. The practice has done well, and they wish to build more operating rooms and contract with more doctors. But before Women’s Surgical could expand, they had to get permission from competing medical practices.

Continue reading

Wisconsin Supreme Court to hear public trust case

Yeah, it's really just a lake with a funny name

Sailor Creek Flowage

An interesting public trust case will be heard in the Wisconsin Supreme Court that has some potentially significant ramifications. Like many lawsuits, it starts with a dispute between neighboring landowners (who also happen to be brother and sister).

At issue is whether or not a landowner that owns property adjacent to a flowage (a special kind of lake in Wisconsin) may build a dock out into the flowage that will have pilings that sit on what is clearly privately owned (though submerged) land under Wisconsin law. The Court of Appeals said yes, and they used a strange expansion of the public trust doctrine to get there.

Learn more about dams, flowages, and the public trust

Weekly litigation report — May 20, 2017

  • Amicus brief filed for contractor long frozen out of contracts
  • Settlement reached in mobile home park case
  • Cap and trade appealed
  • Prairie dog ruling petition to the 10th Circuit
  • Reply filed in Kinderace petition to Supreme Court
  • Affirmative action case goes back to district court

Amicus brief filed for contractor long frozen out of contracts

We and the Center for Equal Opportunity filed this amicus brief asking the Supreme Court to take up Rothe Development v. Department of Defense, filed by our friends at Mountain States Legal Foundation. This is a challenge to racial quota preferences given to minority contractors who bid on certain government projects. In our brief, we’re highlighting the story of Thomas Stewart, a small business owner near Spokane who installs guard rails on highway projects. Stewart writes that “my competitors … have enjoyed taking work from my firm at higher prices for many years. When does it end?” Stewart continues that “I want no more than the chance to succeed — or even fail — on my individual merit…It’s just not fair to punish my firm because neither minorities nor women own it.” We agree with Chief Justice Roberts who put it a few years ago: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” For more see our blog post here.

Settlement reached in mobile home park case Continue reading

Yes, the Constitution even protects communists

Naively, I thought that was obvious. But apparently I was wrong. In California, government employees may be fired solely because they are a member of the Communist Party. What if they’re great at their job? Doesn’t matter. What if their ideas are irrelevant to their job? Doesn’t matter. What if they’re the most qualified person for their role? Nope. That’s right, Bill the forest ranger, or Julia at the California Arts Council, or Susan at the DMV can all be fired for joining the Communist Party.

The law has rarely been enforced since it was enacted during the height of the Cold War. But it seems possible now that some supervisor within the state government may attempt to enforce the law. Earlier this month, the California Assembly passed a bill that would’ve repealed the language which allows the government to fire communists due to their political party membership. The vote was far from unanimous, however, and the bill only passed by an 11-vote margin on its way to the Senate. Opponents of the bill scuttled it, however, on the grounds that communists today in China and North Korea are “still a threat.” Continue reading

New PLF petition highlights the national importance of the Murr case

The U.S. Supreme Court’s decision in the regulatory takings case, Murr v. Wisconsin, is expected to come down any day. At issue in that case is the so-called “relevant parcel” question, which requires courts to identify the extent of an owner’s property interests as a threshold determination in a regulatory takings case. The purpose of this inquiry is to set a baseline so that the court cane determine the degree to which a government action impaired an owner’s rights. It sounds rather straight forward, but in the decades since the Supreme Court, in Penn Central Transportation Co. v. New York City (1978), declared that a takings analysis focuses on the “parcel as a whole,” the lower courts have struggled with the concept, resulting in conflicting rules and inconsistent judgments. Continue reading

Why the separation of powers matters for racial equality

In high school, I spent hours hunkered at a library computer playing Sid Meier’s Civilization instead of working on the school newspaper. In the game, you could lead your own civilization from stone age to space age. You’d guide every detail about your burgeoning society–from their religion to their labor. You’d eventually cross paths with rival civilizations led by guys like Stalin, somehow attired in his Bolshevik uniform and holding a cigarette even in the Bronze Age; “Greetings from he who makes mortals tremble,” he’d say.

As I toyed with the fate of millions on the clunky library PC, H.L. Mencken had me pinned: “The urge to save humanity is almost always a false front for the urge to rule.” To avoid petty potentates like myself, our Constitution fragmented power. The growth of federal agencies, however, threatens to centralize it. This dangerous trend stems from the notion that realizing one’s coveted vision of the world outweighs the constitutional structure that shelters us from the abuse of power.

A petition now before the Supreme Court raises just such a concern. On its surface, Rothe Development v. Department of Defense continues a weary and threadbare conversation–the constitutionality of favoring certain races over others in federal contracting. That’s a vital issue. But the case also raises questions about the kind of power that unelected bureaucrats should wield in a constitutional republic–even when they’re pursuing a goal like remedying discrimination. PLF, joined by our friends at the Center for Equal Opportunity, filed an amicus brief to highlight the importance of separated powers, especially when it comes to racial favoritism. Continue reading

PLF testifies before Appropriations Committee on AB 1129

I testified before the California State Assembly Appropriations Committee this morning about the potential fiscal impacts of AB 1129. PLF was joined in its opposition by thousands of coastal homeowners represented by the non-profit Coastal Rights Coalition, which was formed by affected property owners to lobby against AB 1129 and future policies that undermine the right to use and protect coastal property in California.

In addition, there was opposition voiced by the California Association of Realtors, the California Association of Sanitation Agencies, the California Chamber of Commerce, and the Western Manufactured Housing Communities Association.

The California Coastal Act requires the Coastal Commission to grant a permit for seawalls or other shoreline protective devices when necessary to protect “existing structures” against erosion or other natural hazards. AB1129 will redefine “existing structure” to include only structures in existence prior to January 1, 1977. This would strip vital property rights to shoreline protection from thousands of property owners along the California coastline. We highlighted the significant litigation and takings costs this could impose on state and local governments.

Read more about AB 1129 and its potential costs

PLF appeals cap and trade auction ruling to California Supreme Court

Yesterday, on behalf of our clients in Morning Star Packing Company v. California Air Resources Board, we filed our Petition for Review in the California Supreme Court, asking the state high court to review and reverse the court of appeal’s decision that the billions of dollars that companies like Morning Star Packing Co must pay the state, for permits the state requires in order to remain in business, are not illegal taxes under Proposition 13.

What is at stake in this case? Under California’s greenhouse gas law (in effect, a fuel rationing program), large users or distributors of natural gas and other fuels must get permits (called Allowances) from the California Air Resources Board to use or sell the fuel. The Board limits the number of Allowances available, and allows companies who need them to trade the Allowances with each other. But instead of simply issuing them to the companies that need them, the Board keeps about half of them and then auctions them, for billions of dollars, to the highest bidders. The state legislature then spends the billions on a nearly unlimited variety of general governmental programs unrelated to Morning Star, including spending 25% of the revenue on the infamous high speed train to nowhere.

PLF argues that this auction is an illegal tax, but the court of appeal disagreed. We think the California Supreme Court needs to sort the case out, for multiple reasons.

Continue reading

Law professors argue the President can’t revoke national monuments (and implicitly that Congress can’t either)

We’ve written a lot lately about past Presidents’ abuse of the Antiquities Act and President Trump’s opportunity to reconsider some of those abuses. A few weeks ago, the President issued an executive order calling for a review of 21 years of monument designations, suggesting that he may use his power to revoke past designations.

Naturally, this has environmental groups and other supporters of huge monument designations looking for any argument that would deny the President this power. The latest contribution to that effort is an article by Professors Squillace, Biber, Bryner, and Hecht. That article has many flaws, including that it would mean that not even Congress could reverse a monument designation. A presidential power to make decisions that cannot be reversed by later Presidents or Congress would be unheard of.

Continue reading

PLF petitions for rehearing in Utah prairie dog case

This morning, we filed a petition for rehearing en banc in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service—our challenge to the federal government’s constitutional authority to regulate take of the Utah prairie dog. Three years ago, the District Court for the District of Utah ruled the regulation unconstitutional. But in March, a panel of judges from the Tenth Circuit overturned that decision.

To uphold the federal regulation, the court stretched the Constitution’s Commerce and Necessary and Proper Clauses beyond recognition. The panel hung its hat on the Supreme Court’s decision in Gonzales v. Raich. That case held that Congress can regulate the possession of a commodity (marijuana) as a necessary and proper means of comprehensively regulating the market for a commodity. Without this power, the federal government’s ability to regulate the market would be frustrated.

The panel interprets that case to allow federal regulation of anything for any reason, so long as the regulation is placed in a larger comprehensive scheme. As we explain in the petition, that interpretation is inconsistent with Supreme Court precedent and—more troublingly—antithetical to the notion of limited and enumerated powers.

Continue reading