Freedom Speaks!

The SLF team brings a fresh, freedom-first law perspective on today's events and hot-button issues.

Supreme Court Rolls Back Obama Executive Overreach on Appointments

Jan. 25, 2017

by Laura Jean Coker

Coker is a staff attorney for Southeastern Legal Foundation, a constitutional public interest law firm founded in 1976.

On a day when the Supreme Court and our Constitution were on full display on Capitol Hill, the U.S. Supreme Court sent a clear message to those continuing to defend the Obama Administration’s executive overreach implemented only by his pen and phone.  While the Senate Judiciary Committee grilled Judge Gorsuch just a few blocks away, Chief Justice Roberts announced his 6-2 majority opinion in NLRB v. SW General, holding that the President may not encroach upon the Senate’s “advice and consent” role and must abide by the Federal Vacancies Reform Act (FVRA) when making temporary appointments to open executive positions.  While the majority opinion largely focused on canons of statutory construction, Justice Thomas’ concurring opinion left no question regarding the Court’s ever important role in protecting our Constitution and sent a warning to those seeking to dismantle its fundamental principles: “The Judicial Branch must be most vigilant in guarding the separation between the political powers precisely when those powers collude to avoid the structural constraints of our Constitution[.]”  Notably, Justice Kagan joined the majority and Justice Sotomayor, joined by Justice Ginsburg, dissented.

At issue in the case was President Obama’s appointment of NLRB’s General Counsel Solomon to serve as an acting official while the Senate considered his nomination to the post.  The Senate twice rejected his nomination, yet he continued to serve.  Previous administrations similarly abused the statute to fill vacancies with individuals who never obtained Senate confirmation.  These individuals, like General Counsel Solomon, occupied positions of great power and authority over vast portions of the federal government, military branches, and even entire sectors of the economy. 

Congress passed the FVRA to limit the President’s ability to fill vacancies in the federal bureaucracy with “acting officials” who are not properly appointed and confirmed with the “advice and consent” of the Senate.  The Senate’s constitutional “check” on the Executive’s appointment power limits potential abuses of the appointment power, which the Founders knew had the potential to become “the very definition of tyranny” if not properly curtailed.  In short, the case turned on the plain meaning of the statute.  The statute clearly labels an individual as ineligible to become an “acting official” if she did not serve as a “first assistant” to the position she is temporarily filling, only served as a “first assistant” for less than 90 days, or if she is the current nominee. 

As Southeastern Legal Foundation pointed out in its amicus curiae brief supporting the Petitioner, the danger of unaccountable officials never confirmed by the Senate yet serving in such powerful roles spoke for itself.  The Court acted to uphold limits on executive power, preserving the Senate’s dignity in the all-important confirmation process and sending the message that the usurpation of the Senate’s constitutional role will not be tolerated. 

Click here for the U.S. Supreme Court decision, NLRB v. SW General, March 21, 2017

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Property Owners Win, Supreme Court and Lower Court Right to Challenge Determinations

Jan. 25, 2017

The EPA and Army Corps of Engineers want to regulate your land – that is no secret.  For the last 18 months, SLF has been fighting the Federal Government’s largest land grab known as the “Waters of the United States Rule” which would allow the EPA and Army Corps to regulate your land because of a mere puddle.  While the WOTUS Rule is the Army Corp’s most well-known power grab it is only one example of executive overreach and one method of asserting federal jurisdiction.  A more common, yet less commonly known method, is the “jurisdictional determination.”  The Army Corps issues nearly 10,000 of these determinations each year.   

For decades, the Army Corps has issued jurisdictional determinations under which it unilaterally decides that it can regulate a particular piece of land.  Until last May, a property owner’s ability to challenge such a determination in a court of law stood on shaky ground as courts routinely sided with the agency and dismissed such challenges as unripe for review.  Last May, at the urging of SLF in our amicus brief, the Supreme Court of the United States issued a unanimous decision finding that such challenges were ripe for review and remanded the case at hand to the district court. 

Yesterday, after ten years of negotiation and litigation, Hawkes Company finally got vindication when the Federal District Court of Minnesota ruled the Army Corps had gone too far and could not exercise jurisdiction over the property at issue.  It was a great day for not only property owners, but also for the Constitution.  As SLF pointed out in its amicus brief, reviewability of agency actions is essential to protecting liberty.

Hawkes v. Army Corps of Engineers, District Court decision, Jan. 24, 2017

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Supreme Court Hears Presidential Appointments Case - Transcript

Nov. 7, 2016

While the Nation’s attention was focused on the voting booth, important tenets of the republic are up for debate in the high court.  Earlier this week, the Supreme Court heard oral argument in NLRB v. SW General – a case which puts to the test the limits of executive power over the appointment of officers of the United States. 

The debate at the Court centered on the specific wording of a statute, the Federal Vacancies Reform Act (FVRA).  Congress, through this statute, detailed who may serve when positions in the federal government become vacant.  Many of the individuals serving in government agencies are appointed by the President and confirmed by the Senate in its “advice and consent” role.  However, the Senate confirmation process takes time, and Congress realized that vacancies should not sit open for months – even years – on end when officials retire, pass away, or otherwise vacate their offices. 

When Congress passed the FVRA, it allowed for temporary appointments to open positions, with one caveat – the person serving as the temporary appointee could not become the permanent nominee absent certain qualifications like length of service and previous Senate confirmation to a different position.  The National Labor Relations Board’s convoluted interpretation of the statute disregards these safeguards.  But the Senate, in writing the FVRA, knew that if the President was able to place his eventual nominee in the office, allowing for almost indefinite service before a Senate vote was required, it would give the President too much authority to exercise his agenda through the administrative state, and there would be nothing the Senate could do about it.  Southeastern Legal Foundation (SLF) filed an amicus curiae brief urging the court to preserve the separation of powers principles in interpreting the FVRA.

During oral argument, Justices Ginsburg, Kagan, and Breyer all expressed skepticism over elements of each side’s arguments, respectively, regarding the grammatical construction of the statute.  However, at least several Justices also seemed to recognize that fears of the government slowing to a halt, as argued by the NLRB, were unsubstantiated, and that fears of an infringement on the high walls separating the powers of the different branches of government are all too real.  SLF hopes that the Court will rule in favor of SW General to interpret the statute as it is plainly written, and to protect Congress from an executive power grab.

Supreme Court Transcript - Oral Argument, NLRB v. SW General, Nov. 7, 2016

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Ending Abuse of Presidential Appointments - Once and for All

Sept. 23, 2016

by Laura Jean Coker

Coker is a staff attorney for Southeastern Legal Foundation, a constitutional public interest law firm founded in 1976.

Today, Southeastern Legal Foundation (SLF) filed an amicus brief with the U.S. Supreme Court in the case NLRB v. SW General.  In its brief, SLF urged the Court to preserve the separation of powers in interpreting the Federal Vacancies Reform Act of 1998, which carefully details when a presidential appointee may serve as an acting official before, during, and after the Senate confirmation process.  The past three presidents have been following a convoluted and improper interpretation of that law, allowing their future nominees to serve as acting officials once nominated, which is what the Act explicitly disallows.

The Senate, in writing the law, didn’t want the President’s eventual nominee to be at her post early without Senate approval.  That situation allows for an unchecked implementation of the President’s agenda.  Executive overreach like this was a top-of-mind concern for the Framers of our Constitution, because executive appointments were “deemed the most insidious and powerful weapon of 18th Century despotism,” in the words of the Supreme Court in Freytag v. Commissioner.   

Today, individuals serving in violation of the FVRA hold posts of great access to power with incredible decision-making authority.  Some of the individuals who have served and currently are serving in violation of the FVRA include deputy directors of the departments of Commerce, Justice, Energy, Education, and Health and Human Services, and even deputy director of the CIA.  Those who are second in command at the EPA, in charge of crafting and implementing regulations affecting millions of Americans, are improperly in their posts, as well.  Even individuals second in command for entire branches of the military are serving and have served in violation of the FVRA. 

The Supreme Court has previously held this Administration’s feet to the fire for the improper use of executive appointments when President Obama was found to have abused the Recess Appointments Clause, which presented a very separate issue from this case.  Even though the misuse of the FVRA over the past three administrations spreads the blame, it is time for the executive’s power grab to stop.

U.S. Supreme Court Amicus Brief, NLRB, Sept. 23, 2016

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Private Flight-Sharing At Risk:  FAA Oversteps, SLF and Allies Argue to Supreme Court

July 29, 2016

 by Kimberly Hermann

Hermann is senior counsel for Southeastern Legal Foundation, a constitutional public interest law firm founded in 1976.

Today, Southeastern Legal Foundation (SLF) filed an amicus brief with the U.S. Supreme Court urging it to reverse the Federal Aviation Administration’s (FAA) backward interpretation of its own rule which allows pilots to post pre-planned flights on old-fashioned bulletin boards but not virtual ones.  SLF is joined by the NFIB Small Business Center, the Buckeye Institute, the Beacon Center of Tennessee, and professor and pilot Thomas P. Gross.  

Flying a private airplane is expensive.  For decades, the FAA has permitted pilots to defray those operating expenses for pre-planned flights under its Expense-Sharing Rule.  In other words, if a pilot is flying from Atlanta to Charleston and wishes to share the operating expenses (fuel, oil, rental fees etc.) with others, he would post his information about his pre-planned flight on a physical bulletin board at his local airport.  And, others wanting to fly with him could take note and do so.   

With the advent of the Internet and now ubiquitous use of apps, traditional bulletin boards are nearly obsolete.  Companies like Flytenow have stepped in and created websites to make it easier for pilots to communicate with potential cost-sharing passengers.   The practice is abundant in Europe and in fact next month will be legalized in all European Union member states.

For reasons that remain unexplained, the FAA has deemed the online practice illegal and the U.S. Court of Appeals for the D.C. Circuit upheld that finding by deferring to the agency.   Flytenow, and similar companies in the U.S. have been forced to shut down their websites.

SLF argues that the FAA’s order is arbitrary, antiquated, and inconsistent with its longstanding Expense-Sharing Rule for private flights.  After all, whose plane is it, anyway?  Safety and operational concerns aren't affected, but free enterprise and freedom to use property - safely and sercurely - sure is.

U.S. Supreme Court amicus brief, Flytenow, July 29, 2016

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"Environmental Justice" Not Subject to Congress, Courts:  Department of Interior's New Plan Violates Constitution

May 17, 2016 

by Todd Young

Young is executive director for Southeastern Legal Foundation, a constitutional public interest law firm founded in 1976.

In every Soviet-era military unit, the long shadow of totalitarian political control hung over day-to-day operations.  A political commissar served alongside commanding military officers to ensure that communist purity was maintained.  The commissar’s primary function was ideological training and indoctrination.  Today’s communist Chinese military has similar “oversight.”  The commissars were not accountable to military commanders, only to the political directorates.  Soviet soldiers and sailors who were judged to be politically deviant were subject to the harshest of penalties.

So why do we look back at that terrifying model of political control?  During the seven and a half years of the Obama administration, the appointment of various “czars,” the steady flow of Executive Orders, and the explosive expansion of regulatory interpretation beyond the black and white letters of statutes passed by Congress has given rise to political commissar-style federal government enforcement that is anathema to constitutional separation of powers and checks and balances.

Earlier this week, Justice Clarence Thomas urged a group of college graduates “not to hide [their] faith and [their] beliefs under a bushel basket, especially in this world that seems to have gone mad with political correctness.”  Justice Thomas’s statements regarding the limitless reach of “correctness” ring true – particularly in the arena now called “environmental justice.”

Born during the Clinton administration and mostly dormant during the Bush years, the “environmental justice” mandate has become an overarching political commissar-style ideological influence on as many as 15 executive agencies, including and especially the Environmental Protection Agency (EPA). 

Carefully crafted to avoid “rulemaking,” which would subject the shadowy office in each agency to public, judicial and congressional review, the Obama-era Office of Environmental Justice nevertheless tracks, analyzes, reviews, and has a hand in issuing public tax dollars in the form of grants to all sorts of “community groups” and agenda-driven environmentalists to “educate” the public in the form of political protests and campaigns against private industry.

In short, the limited statutory authority of executive agencies to do the work of regulating has been trumped by the political.  Formal actions by agencies are increasingly judged through the political prism of the Orwellian “environmental justice” movement, now cloaked with government power. 

For decades, under the banner of “environmental justice,” the federal government has sought to expand its jurisdiction, control and influence.  Through means largely exempt from any meaningful notice and comment procedures, the federal government grants itself unlimited discretion to determine whether a community may be adversely impacted by an environmental regulatory decision and then regulate actions related to that community.  There are no congressionally authorized definitions or limitations.

In the most recent version, the Department of Interior’s 2016-2020 Draft Environmental Justice Strategic Plan was, strangely, open for formal public comment.  On May 16, 2016, SLF filed a public comment to bring attention to several key infirmities of the proposed plan.  In addition to bringing about enormous and transformative expansion to the DOI’s regulatory authority without congressional authorization, the proposed plan directly conflicts with several existing federal laws. 

Specifically, its focus on environmental “effects” on “minority, low-income, or tribal populations” is both narrower and broader than Title VI in that the latter involves disparate treatment rather than disproportionate effects, protects all racial and ethnic groups rather than only “minority populations,” and says nothing about “low-income or tribal populations.”   This has the effect of making the exact same conduct legal in one city, but illegal in another based solely on the racial makeup of the cities at that exact moment in time.

According to the proposed plan, the DOI intends on increasing its use of social outreach tools - the very same tools that the EPA used to conduct its illegal grassroots lobbying campaign to support its expansive definition of waters of the United States (WOTUS) that SLF is challenging in federal court.   As it pushes environmental political correctness and seeks to expand its influence, the DOI is quickly approaching the dangerous line between informing the public and lobbying to the public.

Finally, the DOI’s proposed plan is constitutionally problematic in that it protects some racial and ethnic groups, but not others – ostensibly denying the equal protection of laws.  The government’s reliance on race as its primary consideration for protecting one group over another from alleged environmental harms runs afoul of the Constitution and is subject to the strictest level of scrutiny. Stay tuned as “environmental justice” begins to receive meaningful legal and congressional examination.

"Environmental Justice" Plan from Dept. of Interior Violates Constitution, May 17, 2016

SLF Formal Public Comment on Interior's "Environmental Justice" Plan, May 17, 2016

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Obama's "Clean Power Plan" Strikes at Heart of Constitution:  More Executive Overreach

Feb. 24, 2016 

by Kimberly Hermann

Hermann is senior counsel for Southeastern Legal Foundation, a constitutional public interest law firm founded in 1976.

It’s just like the Obama administration to ignore what it doesn’t like, including constitutional orders from the Supreme Court.  As Ronald Reagan famously said in a debate against Walter Mondale, “There you go again.” 

The Supreme Court has ruled that the U.S. Environmental Protection Agency has overreached its authority without congressional approval related to previous Obama efforts to regulate "clean power."  Fast forward a year and a half:  Obama’s EPA has put forth what it refers to as the “Clean Power Plan.”  This rule purports to enact a previously unimagined regulatory program whose avowed purpose is to compel the owners of existing power plants to invest in alternative forms of energy generation.  In other words, the goal of the “Clean Power Plan” is to kill the coal industry, usurp powers generally left to the states, and rewrite our country’s entire power grid – at a cost of billions of dollars and hundreds of thousands of jobs.

In 2014, Southeastern Legal Foundation successfully challenged the EPA’s overreach and unconstitutional regulation of greenhouse gases.  Writing for a unanimous Court, Justice Scalia reminded the EPA (and the Obama Administration at-large) that it too was bound by the separation of powers principle.  He wrote: “We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery.  We reaffirm the core . . . principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.”

Regardless of your opinion on the proclaimed goals, all Americans should be bothered by the EPA’s actions because the “Clean Power Plan” violates several of the most basic tenets of our constitutional Republic. 

First, these mandates blow through the proper bounds of administrative authority and trench upon the legislative power reserved to Congress.  The EPA claims that the Clean Air Act authorizes it to pursue Obama’s war on coal through any means necessary, including promulgating the “Clean Power Plan.”  It does not.  Rather, the provisions of the Clean Air Act squarely foreclose the regulatory overreach announced by the EPA.

Second, these mandates threaten the very foundations of federalism inherent in our Constitution.  The federal government may not coerce the state into implementing federal regulatory programs, especially ones like this that go far beyond what the states could have foreseen under the Clean Air Act.

So, like Justice Scalia, we refuse to stand on the dock and wave goodbye as Obama’s EPA embarks on yet another voyage of progressive discovery outside the bounds created by our Constitution.

Obama's "Clean Power Plan" Strikes at Heart of Constitution, Feb. 24, 2016

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Justice Antonin Scalia:  Why We Defend the Constitution Every Day

Feb. 15, 2016

by Kimberly Hermann

Hermann is senior counsel for Southeastern Legal Foundation, a constitutional public interest law firm founded in 1976.

While my only personal interaction with him was a passing handshake, I owe my career to Justice Antonin Scalia.

He instilled in me a love for the Constitution.  He explained why we honor its intent.  And he inspires the ongoing work necessary to protect it.

As an accounting graduate student studying for the CPA exam, I was in desperate need of an outlet…something that would keep my mind fresh, but also allow me to forget about debits and credits if only for an hour a day. 

Lucky for me, it was 2004, and the presidential election was in full swing.  Having missed the opportunity to vote in 2000 by a mere month, I was excited to finally be able to participate in the democratic process.  That meant getting up to speed on issues which up to that point, I had only a surface level understanding of.  One of those was the Supreme Court.

With the election came rumors of potential retirements on the Supreme Court and what the candidates would seek in a nominee’s jurisprudence – would he appoint a textualist, an originalist, or a living constitutionalist? Hailing from a liberal arts school these terms were familiar, but I didn’t truly understand them. So, I started reading.  And I didn’t stop. 

I quickly became engrossed in Justice Scalia’s writings on the Constitution.  Having no legal training at that point allowed me to skip over the nuances of the case and focus in specifically on Justice Scalia’s discussions of the Constitution, which were witty, entertaining and sensical – with each opinion read, I wanted to learn more. 

His writings, strong conviction and loyalty to the Constitution led me to change career paths – I went to law school, focused on constitutional law and I now have the privilege of fighting for the rule of law and defending the Constitution. 

My story is not unique.  In fact, as our Country mourns the loss of a man who reminded us to return to the document that makes our Country like no other, similar stories are emerging all over the Internet.  I will forever be grateful to Justice Scalia for instilling in me a love for our Constitution.

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You Need Not Apply:  State Department Discriminatory Hiring and Title VII Confusion 

Jan. 22, 2016

by Kimberly Hermann

Hermann is senior counsel for Southeastern Legal Foundation, a constitutional public interest law firm founded in 1976.

The U.S. State Department, which represents and promotes America and our values of justice, opportunity and rule of law around the world, has a dirty secret that flies in the face of justice, opportunity and – now in court – the rule of law.

What would you do if I told you that the State Department refused to even consider qualified candidates for a mid-level jobs in the Foreign Service because of their color?  You would be outraged! Understandably so – but it is the truth.

You see, for decades, the courts have been rolling back race-based quotas by federal, state and local governments.  Why?  Because race is a ‘protected class’, which means that governments and institutions affiliated with government must prove ongoing discrimination in order to sustain a race-based hiring quota.  Courts have struck down program after program in the school admissions and public contracting arenas because they simply cannot prove ongoing discrimination.

But it’s a different story when it comes to hiring, at least at the federal level.

According to the State Department’s affirmative action plan in place from 1990-1992, it could not hire, or even consider hiring, whites for a mid-level grade position.

If federal statutory law expressly commands that all covered federal employees shall be “free from any discrimination based on . . . race,” how can the government then adopt a race-based affirmative action plan and deny non-minority applicants employment because of their race?  

That is the main question posed by Shea v. Kerry

In 1992, Mr. Shea became a State Department Foreign Service officer at a junior-level post.  He filed a complaint against the State Department for its discriminatory hiring policy during the years 1990-1992.

This case is complicated because the Supreme Court’s Title VII jurisprudence is unclear and unworkable.   The statute itself provides equal protection to all within its scope.  But, in 1979, in an expensive reading contrary to the text, the Court found that Title VII did not prohibit affirmative action plans to remedy disparate impact.  In other words, companies and the government were given the green light to exclude non-minorities whether or not they actually proved ongoing discrimination.

In recent years, we have seen the Supreme Court apply a much more literal and honest interpretation of Title VII and find that an employer can only make discriminatory employment decisions if it can establish that if it didn’t, it would be subject to liability. 

The time has come for the Supreme Court to clarify its Title VII jurisprudence and ensure that no one is excluded from applying or being considered for a job because of their race.  Southeastern Legal Foundation, joined by the Center for Equal Opportunity, the Cato Institute and the National Association of Scholars, filed an amici curiae brief in support of Shea, asking the Supreme Court to take up the case. 

You Need Not Apply:  State Department Discrimination, Jan. 22, 2016

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Journey's End:  Feds Regulate Private Land in Alaska - Supreme Court Challenge, Armed Agents Grab Unauthorized Power

Dec. 11, 2015

by Kimberly Hermann

Hermann is senior counsel for Southeastern Legal Foundation, a constitutional public interest law firm founded in 1976.

Our Founding Fathers were raging paranoids – and for good reason!  Their overriding concern – seared into the American consciousness by trial at the hands of a foreign power that had no compunction about seizing property, taking guns, and imprisoning innocents – inspired them to create a limited government structure, one that delegated few and defined powers to the federal government. 

Today’s administrative state, nearly limitless in scope and enforced too often at gunpoint, would startle the Founders, who would hardly recognize the behemoth of our federal government.  The most frequently leveled accusation against the Obama administration, memorialized in an ever-growing list of lawsuits filed by groups like ours, is ‘Executive Overreach.’  In case after case and example after example, the Feds have infiltrated our lives – even, and more specifically, into areas where Congress has forbidden them from reaching. 

On multiple occasions, Congress expressly declined to grant the National Park Service authority to exercise jurisdiction over private and state lands and waters that happen to lie within Alaska’s national parks and preserves.  Ignoring Congress’s explicit prohibition, the National Park Service authorized armed federal agents to board the boat of Mr. Sturgeon, a 75-year old man simply traveling along a state river, and prohibit him from continuing his journey. 

Recognizing that his rights were trampled upon, Mr. Sturgeon filed suit challenging the National Park Service’s claim of extraterritorial jurisdiction and after many years the case have now arrived at the Supreme Court.  Southeastern Legal Foundation filed an amicus brief supporting Mr. Sturgeon because this is yet another example of the Executive Branch’s unconstitutional usurpation of power through creation of an expansive administrative state. 

The Obama Administration has grown the administrative state through the expansion of existing agencies’ jurisdiction – even when Congress expressly denies it those powers.  This is of prime concern to SLF because expansion of administrative jurisdiction raise serious constitutional concerns and in the case of Mr. Sturgeon violates the Fifth and Fourteenth Amendments of the Constitution.  The “journey’s end” should be the court-enforced limits on Executive authority – not the end of constitutional liberty.

Journey's End:  Feds Grab Private Land in Alaska, Dec. 11, 2015

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Obamacare "Tax" Started in Senate - Supreme Court Challenge on Illegal Bill

Dec. 11, 2015

by Kimberly Hermann

Hermann is senior counsel for Southeastern Legal Foundation, a constitutional public interest law firm founded in 1976.

As we were all famously told by then-House Speaker Nancy Pelosi, Congress had to pass the Patient Protection and Affordable Healthcare Act (PPAHA), known commonly as “Obamacare,” so that We, the People can find out what’s in it.  Well, Congress passed it . . . the People read it . . . and the People don’t like it.

Almost immediately, our lawmakers commenced the battle to save this country’s healthcare industry and ensure that the People remain in control of their healthcare decisions.  The People have also stepped up to the plate, filing countless lawsuits to chip away at the burdensome and crippling ACA.   

Three years ago, in the first of several highly-publicized lawsuits challenging the ACA, the Supreme Court upheld the ACA’s individual mandate penalties as a “tax.”  The Obama administration lauded the Court’s holding and determination that the ACA was a tax as a major win, but the best-laid plans of mice and men oft go astray. 

In arguing that the individual mandate was a “tax,” the federal government acknowledged that the ACA is, at its core, a bill for raising revenue (and a lot if it, at that).  The effect of the individual mandate and the ACA’s other revenue provisions resulted in one of the largest tax increases in American history, imposed on the entire population, with revenues of some $486 billion anticipated. 

Why does this matter? And, why did it cause the Obama Administration’s plan to “go astray”? 

The Constitution requires that all bills for raising revenue originate in the House of Representatives.  As Southeastern Legal Foundation explains in its amicus brief filed with the Supreme Court in support of Matt Sissel’s lawsuit challenging the ACA, the revenue-raisint ACA did not originate in the House of Representatives.  Instead, what eventually became the ACA started out as the six-page Service Members Home Ownership Tax Act of 2009.  That bill was unanimously passed by the House, but when it went to the Senate, the only thing the Senate kept was the bill number.  It gutted the six-page bill and replaced it with 2,074 pages of healthcare and tax legislation that included 17 revenue-raising provisions. 

The Senate’s actions violated the Constitution’s Origination Clause and made a mockery of the Founder’s commitment to checks and balances.  SLF supports Matt Sissel in his challenge to ensure that a lawful legislative process remains a constitutional precondition preceding the enactment of laws.  We, the People are doing what we can, under the Constitution, to chip away at the Obamacare juggernaut.

Obamacare "Tax" Started in Senate - Supreme Court Challenge on Illegal Bill, Dec. 11, 2015

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Who Pays for Property – Under the Constitution?

Dangerous Move to Force Builders to Cover “Affordable Housing”, Oct. 16, 2015

by Kimberly Hermann

Hermann is deputy counsel for Southeastern Legal Foundation, a constitutional public interest law firm founded in 1976.

Who should pay for public policy mandates by the government?  This seems like a simple question – one that the vast majority of Americans would answer with “the government.” 

A good analogy is the endangered species question that SLF has argued successfully in the U.S. Supreme Court.  If society decides that setting aside the habitat of the spotted owl is worthy, then society should pay for it.  The government should buy the land to preserve it.  It’s not fair – and it is patently unconstitutional – that the government place the burden on the property owner without just compensation.  That’s one of the fundamental protections guaranteed by the Constitution.

Fast forward a couple of decades, and we’re in the same place with another important issue – affordable housing. 

Decades of experimentation with below-market or “affordable” housing programs tell us they just don’t work.  In fact, requiring developers to include below-market units in their projects actually aggravates the challenges associated with attracting development to low and middle income communities.  For example, below-market mandates in the San Francisco Bay Area have resulted in only 6,836 below-market units, or an average of only 228 per year over the last thirty years.

If history tells us that below-market housing programs don’t work, then why are the federal government and certain local governments such as the City of San Jose hell-bent to pursue them?  

One explanation is that through these programs, the government reduces its own expenses by passing along the costs associated with below-market housing to a mere few in the community – the developers, builders, and real estate professionals.  If they don’t have to spend money (and raise taxes), then how much easier it is to push the cost to the private sector.   

San Jose, for example, has passed the buck by requiring developers to set aside 15% of their entire housing development to be purchased by city-designated low-income buyers at below-market and below-cost.  If the developer refuses, he must pay a steep fine ($122,000 per house) or will be denied his development permit.  

What is even more troubling about these programs is that they violate the Takings Clause of our Constitution.  There are two constitutional victims in play.  The unconstitutional taking occurs in the first instance from the builder or developer.  An unconstitutional taking occurs in the second instance when the initial buyer is prevented from reselling it at market price.  In both scenarios, the people are punished and the Constitution is violated, all in favor of failed wealth redistribution policies.

Fortunately, a group of builders and developers are standing up for the constitutional rights of all Americans and challenging the San Jose ordinance and have asked the Supreme Court to review their case.  Today Southeastern Legal Foundation filed a brief supporting their fight.  We view this as the next constitutional challenge pitting government social engineering against the rights of property owners who, in the case of builders and developers, risk capital and venture into a no-guarantee-of-return exercise of their fundamental constitutional right to “full use and enjoyment” of property. 

Who Pays for Property - Under the Constitution? - Oct. 16, 2015 pdf version

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Who Qualifies for College Admissions?  Constitutional Question Again! Sept. 21, 2015

by Kimberly Hermann

Hermann is deputy counsel for Southeastern Legal Foundation, a constitutional public interest law firm founded in 1976.

Abigail Fisher was a terrific high school student.  She had every academic qualification to all but guarantee acceptance to her state’s flagship university, the University of Texas at Austin.  She earned it.

But when she applied, she was turned away – not because she was unqualified, but because the university needed to meet its diversity goals.   Abigail’s race was a problem for the school.

Nearly ten years ago, Abigail Fisher sued the University of Texas at Austin and challenged the constitutionality of its race-based admissions program.  To understand the case, it helps to step back to 1997 when Texas implemented its Top Ten Percent Law – the top 10% of all Texas high schools are automatically admitted to the university. 

The program was lauded a success in the areas of racial, geographic and class diversity.  The percentage of African-American and Hispanic students rose from 18.6% in 1996 to 21.4% in 2004, and the university also saw increases in grade-point averages and retention rates for minorities.  Despite the program’s successes, the university continued to expressly consider race as a factor when evaluating all other applicants.  

Ms. Fisher’s case made it the way to the Supreme Court where it ruled in her favor and sent the case back to the lower court. 

Now, on the case’s second trip to the Supreme Court, the university claims its race-conscious admissions program is necessary to ensure “qualitative diversity.”  What on earth is that, we ask? 

In what can only be described as an offensive and arguably unconstitutional slap, the university argues that minorities from majority-minority schools do not provide the “right” kind of diversity – in other words, the university wants to increase its minority enrollment from majority white high schools.  

The university commits the worst offense of racial profiling in claiming that minorities admitted under the Top Ten Percent Law that come from underprivileged or majority-minority high schools lack the attributes that contribute to campus diversity or, in their words, they will not be catalysts for change.  Rather than promoting inclusiveness and cross-racial understanding, the university is reinforcing the very stereotypes that prevent certain groups, such as those from majority-minority high schools, from achieving success. 

During the next trip the Supreme Court, after the Fifth Circuit wrongly allowed the university to continue its illegal admissions process despite a strong ruling by the high court, it’s very likely that the Justices will use this case as an opportunity to slam the door – once and for all – on “creative” and entirely unconstitutional college admissions programs that put social and racial engineering above merit.

Who Qualifies for College Admissions?  Constitutional Question Again! - Sept. 21, 2015 pdf version

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Defending Donor Privacy:  Your Rights at Stake, Sept. 3, 2015

by Kimberly Hermann

Hermann is deputy counsel for Southeastern Legal Foundation, a constitutional public interest law firm founded in 1976.

After the IRS scandal in which conservative organizations were allegedly targeted because of their ideological bent (applications for tax-exempt status slow-boated by testimony of dozens of groups), Americans were reminded in big, bold headlines that your viewpoint – expressed in the form of financial contributions – is part of your protected free speech. 

Protected against backlash by viewpoint-opposed individuals and groups, and protected against abuse of information by government.

Let’s start by agreeing that disclosure laws are important for political accountability.  We should know who is giving to candidates, and how much.  We should have some good idea about who is giving to political support groups, and how much. 

But when an organization is non-profit and tax-exempt, it has agreed to submit to stringent requirements against overt politicking and a host of other requirements and prohibitions.  In return, its donors are protected from public disclosure, other than to the IRS in the group’s annual tax return.

Here’s how that got started.  In the heat of the 1950s segregation era, there were repeated instances in which individuals who worked for civil rights organizations like the NAACP – and those who contributed money to them – were targeted for violence and intimidation.  In 1958, the U.S. Supreme Court declared that privacy in group association is vital for preserving our First Amendment freedom of association.

Now, ignoring the Supreme Court’s long-standing precedent and the First Amendment, California’s Attorney General is requiring certain non-profit organizations to disclose their donor lists or risk not being permitted to solicit charitable contributions in California.  Such disclosure would chill the speech and free association of the organizations and their donors.  New York is following suit.

Confidentiality has long been the lifeblood of many non-profit organizations.  That’s why a group of organizations, including Pacific Legal Foundation, Southeastern Legal Foundation, Goldwater Institute, Mountain States Legal Foundation, Atlantic Legal Foundation, and Missouri Forward Foundation, have joined together as friends of the court in a Supreme Court challenge against California’s actions led by Center for Competitive Politics.  We’ve done this to help defend one of the constitutional freedoms we are pledged to protect.

Defending Donor Privacy:  Your Rights at Stake - Sept. 3, 2015 pdf version

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Oh, Denver!  Denying Chick-fil-A Crosses Constitutional Lines, Aug. 27, 2015

by Todd Young

Young is chief operating officer of Southeastern Legal Foundation, a constitutional public interest law firm founded in 1976. 

Denver, Colorado's city attorney said he was caught off-guard by the radical proposal to table - and perhaps deny - Chick-fil-A's franchise concession agreement for the Denver International Airport.  Really?  Which part surprised him - the radical proposal or the loud public backlash?

New City Council members have stalled the application for two weeks, citing "corporate profits used to fund and fuel discrimination."  The "discimination" in question is comments by Chick-fil-A president and COO Dan Cathy in support of traditional marriage.

Comments, not actions.  Not employment choices based on sexual orientation.  Not discrimination.

In fact, there has never been a successful sexual orientation discrimination lawsuit against Chick-fil-A.  Why?  Because Chick-fil-A does not discriminate, either against its employees or against its patrons.

Setting aside the faith-based personal views of many of Chick-fil-A's corporate leaders (which, by the way, are entirely protected under the First Amendment), let's take a look at legal principles that are meant to control how a government can decide to give benefits, hire, or grant contracts:

>   Government must use the same standards for all - and must not be arbitrary or capricious.

>   Government must not enforce unconstitutional mandates or quotas on contracts.

>   In order to make exceptions against applicants and bidders, the burden is on the government entity to prove that there is actual, measurable, and ongoing discrimination.  The burden is not on Chick-fil-A to prove itself.

So says the U.S. Supreme Court.  So says common decency, fairness, and business best practices.  Perhaps, in light of the facts that Chick-fil-A willingly agreed to a non-discrimination policy set up by Denver and that no discrimination is proven, the social engineers on the Denver City Council would be willing to hire, provide scholarships, and pump hundreds of thousands of tax dollars generated by a successful Chick-fil-A franchise into their local economy?  Not going to happen.

To the Denver City Council activists - boycott if you like; make public statements if you wish.  But take punitive action with the strong arm of government power at your own legal peril.

Oh, Denver!  Denying Chick-fil-A Crosses Constitutional Lines - Aug. 27, 2015, pdf version

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