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Monday
Apr182016

Government Says Owners Can't Use Property: SLF Files Supreme Court Brief, April 18, 2016

WASHINGTON, DC/ATLANTA, GA, April 18, 2016:  Can't sell or use your property?  Let's see what the Supreme Court has to say about it . . . SLF, joined by The Beacon Center, files amicus brief in the U.S. Supreme Court in support of the constitutional property rights.

The Murr family purchased a lakefront residential lot in 1960 and built a recreational cabin on it.  Several years later they purchased the lot next door as an investment.  The Murr children now want to sell the investment lot and use the money to renovate the cabin, so that future generations of Murrs can enjoy summers at the lake.   Happens a thousand times a day across the America, right?

Unfortunately, a 1975 county ordinance stands in their way.  After seeking and being denied a variance, the Murrs filed suit in federal court seeking compensation for the taking of their land.  The Wisconsin courts declined to find a taking simply because the Murrs lots were contiguous and shared the same owner.  In other words, if one lot was owned by 2 of the Murr children and the other lot was owned by the other 2 Murr children, it would have found a taking.  Or if the lots were not directly next door to one another, it would have found a taking.

SLF and The Beacon Center, argues that the lower court’s aggregation of two contiguous lots that have otherwise been treated separately is neither fair nor just because it deprives the property owners of all economically viable use of one of those lots.  In its brief, they advocate for the Supreme Court to devise a test for evaluating future attempts to aggregate property such as the multi-factor test applied by several lower courts.  Such a test supports the Murrs’ argument that Takings Clause jurisprudence supports a presumption that where a single parcel is alleged to have been taken, the parcel as a whole is that single parcel, nothing more and nothing less.

Click here for Supreme Court brief, April 18, 2016

Wednesday
Apr132016

EPA's Public Records Stonewalling Slammed by Federal Court, April 13, 2016

EPA’s PUBLIC RECORD STONEWALLING SLAMMED BY FEDERAL COURT

ATLANTA, GA/April 13, 2016:   Southeastern Legal Foundation won its seven-year battle for records related to greenhouse gases and the EPA’s annual Freedom of Information Act (FOIA) reports.  Over the course of six years, SLF submitted three FOIA requests to the EPA: 1) seeking records related to the timing, public comments and financial implications of the Endangerment Findings; 2) seeking records related to grants related to anthropogenic climate change issued or denied by the EPA; and 3) the raw statistical data underlying the EPA’s Annual FOIA Reports for specified years.  In 2015, after the EPA continuously stonewalled SLF’s efforts to access the public records, SLF went to federal district court to challenge the EPA’s failure to meet its obligations under the Freedom of Information Act.

In late March, the U.S. District Court for the Northern District of Georgia granted two of SLF’s three motions for summary judgment and ordered the EPA to produce records responsive to SLF’s FOIA requests at no cost to SLF.  With respect to the third motion for summary judgment, after receiving a log of the EPA’s redactions, SLF determined that it no longer needed the redacted information and voluntarily abandoned those claims.

In granting SLF’s requests for fee waivers, the district court slammed the EPA for denying SLF’s fee waiver request in the first place, stating that “it is not difficult to discern a basis for SLF’s assertion of a substantial public interest in the information” and explaining that “it is difficult to imagine a more hot-button topic than the public’s interest in and heated reaction for or against the government’s efforts to regulate greenhouse gas emissions.”

The district court balked at the EPA’s argument that it did not need to produce any records about its controversial “Endangerment Findings,” which served as the justification for the rules which were ultimately struck down by the U.S. Supreme Court.   In doing so, the court stated that the promulgation of an administrative rule “does not obviate the informative value” of related information, setting important precedent for the Northern District of Georgia.  The district court also slammed the EPA for its refusal to make any attempt at obtaining agency records allegedly held by an agency contractor and ordered it to take all reasonable steps to obtain the requested records.

SLF's win is important for reasons that far exceed the knowledge to be gained from the responsive records EPA must now produce.  It creates strong legal precedent for the grant of SLF's fee waiver requests which SLF can rely on in future FOIA requests and related litigation.  

But even more important is the message it sends to the EPA - while it may be able to play its games and delay or deny production of records in other jurisdictions, the Northern District of Georgia will not stand by and allow the agency to refuse to produce responsive records or deny fee waivers when there is a clear and obvious public interest.   SLF will be able to rely on the Court's order and lessons learned from its successful litigation in future FOIA requests to the EPA and other federal agencies – a clear win for accountable government advocates.

Click here for U.S. District Court Ruling

Wednesday
Mar162016

Obama Lawyers to Silence Climate Change Skeptics, Washington Times, March 16, 2016

March 16, 2016:  In today's Washington Times, SLF warns of the First Amendment constitutional crisis that would be created by threats from the Obama Justice Department to bring court action against man-made climate change skeptics - exactly the kind of tyranny the Founders feared and the Constitution protected against -

Click here for SLF's op-ed in The Washington Times, March 16, 2016

Wednesday
Feb242016

Obama's "Clean Power Plan" Unconstitutional - SLF and top litigator file amicus brief, Feb. 22, 2016

WASHINGTON, DC (Feb. 22, 2016): Southeastern Legal Foundation and nationally recognized attorney Steven Bradbury, a partner at Dechert LLP in Washington, DC, today filed a critical amicus in the U.S. Court of Appeals for the District of Columbia joining in the challenge against the Environmental Protection Agency’s so-called “Clean Power Plan.” State of West Virginia, et al. v. EPA, et al., No. 15-1363. The Plan was stayed by the Supreme Court in early February.

As argued in the brief, the Clean Power Plan violates critical framework provisions of the U.S. Constitution – the separation of powers between the legislative and executive branches, and the federalism principles that protect the states from federal overreach. In this case, the Clean Power Plan mandates that states issue regulations in compliance with the announced federal standards, a power that the federal government does not have.

Following on the heels of the 2014 Supreme Court decision striking down the Administration’s so-called “climate change” rules purported to regulate greenhouse gas emissions, SLF, et al. v. EPA, et al. (2014), Bradbury and SLF Senior Counsel Kim Hermann argue that the Clean Power Plan leapfrogs over the 2014 decision and further embarks the Administration on a journey of constitutional executive overreach.

Highlights from the brief:

“The Clean Power Plan must be struck down unless Congress has granted the EPA clear and unambiguous authorization to embark upon this extraordinary and transformational regulatory program. Far from providing such express authorization, the provisions of the Clean Air Act squarely foreclose the regulatory overreach announced by the EPA. The rule should therefore be invalidated.”

“In doing so, the EPA’s regulatory regime would upend the constitutional balance of powers by arrogating to an executive agency the authority reserved to Congress to craft wholly new legislative solutions, as well as the awesome power to compel the States to enforce the agency’s unprecedented commands. This industry-transforming regulation cannot be sustained in the absence of a clear and unambiguous statutory authorization from Congress, which is nowhere to be found in the Clean Air Act.”

Bradbury, who was co-counsel with SLF in the 2014 Supreme Court case on greenhouse gas emissions, served as the head of the Office of Legal Counsel in the U.S. Justice Department, and was a law clerk for Supreme Court Justice Clarence Thomas.

Click here for SLF amicus brief in Clean Power Plan challenge, West Virginia, et al. v. EPA, et al., No. 15-1363, Feb. 22, 2016

Monday
Feb222016

U.S. Soldier's Child Born on U.S. Base is a Citizen - Appeal to U.S. Supreme Court, Feb. 17, 2016

ATLANTA, GA/WASHINGTON, DC (Feb. 17, 2016):  A child born to a U.S. soldier who is serving overseas and the child is born on a U.S. base in a U.S. hospital is not a U.S. citizen, according to the Fifth Circuit federal appellate court.  Southeastern Legal Foundation has filed an amicus brief challenging this holding, asserting that "This Court should hold, simply, that the child of a U.S. citizen soldier, born in a U.S. hospital on a U.S. base, is a U.S. citizen."  Thomas v. Lynch, No. 15-889.

SLF Senior Counsel Kim Hermann, who co-wrote the brief with John Adams, Matthew Fitzgerald, and Michael Baudinet of McGuire Woods LLC in Richmond, VA, argue that with a basic Originalist view of the Constitution's Citizenship Clause, acknowledging the Constitutional citizenship of children of military families overseas is consistent with our nation's tradition of encouraging and honoring military service.

Click here for SLF Supreme Court brief in Thomas v. Lynch, No. 15-889, Feb. 17, 2016

Wednesday
Feb102016

Obama's so-called "Clean Power Plan" halted by Supreme Court, Feb. 10, 2016

WASHINGTON, DC:  The U.S. Supreme Court today dealt a significant initial blow against President Obama's so-called "Clean Power Plan" by staying the Plan's implementation until oral arguments before the high court on June 2 this year.

Since the Court's 2014 decision slapping down the Environmental Protection Agency's greenhouse gas regulations as "executive overreach" and a violation of constitutional separation of powers, in which SLF represented 14 members of Congress and multiple professional associations and companies, "the tendency has been for the federal courts to halt President Obama's regulations in order to figure out whether Congress has had a chance to review and approve them," said Todd Young, SLF chief operating officer.  "In this case, as in most recent cases, Congress was left out of the constitutional equation and the Executive branch simply gave itself authority to change the law."

SLF will be participating as a friend of the court in the Clean Power Plan arguments before the Supreme Court.  SLF is also currently challenging the EPA's controversial "Waters of the United States" regulations that have likewise been stayed by the Sixth Circuit federal appellate court.

 

Friday
Jan292016

VIDEO: SLF reviews Supreme Court arguments in Alaska case challenging regulatory overreach, Jan. 26, 2016

NATIONAL, Jan. 26, 2016:  SLF's Senior Counsel Kim Hermann appears on Claremont Institute's Center for Constitutional Jurisprudence video panel to discuss Sturgeon v. Frost, a case heard by the U.S. Supreme Court last week which challenges the National Park Service's claim of enforcement jurisdiction over private property in Alaska.  SLF participated in the case as a friend of the court, pointing to clear language in federal law prohibiting such enforcement by NPS.

Click here for CCJ Video

Monday
Jan112016

U.S. State Dept. Hiring Policy - Limiting Hires Based on Race, Supreme Court Appeal, Jan. 8, 2016

ATLANTA, GA/WASHINGTON, DC (Jan. 8, 2016):  Can the U.S. State Department pick job applicants based on race - a policy declared unconstitutional by many courts including the U.S. Supreme Court?  SLF says absolutely not.

Southeastern Legal Foundation today filed an amicus brief in the U.S. Supreme Court supporting William Shea, who is challenging the State Department’s affirmative action program that effectively prohibits white applicants from starting at mid-level positions, even if they are qualified for the job. William E. Shea v. John Kerry, No. 15-742.

After 13 years of fighting in the lower courts, Shea is now petitioning the Supreme Court to hear his case.  The case raises important questions of federal law including application of current Supreme Court precedent, expansion of statutory remedies, and the resulting expansion of affirmative action programs that would result if the lower court’s opinion is allowed to stand.  SLF is joined by the Center for Equal Opportunity, CATO Institute, and the National Association of Scholars.  SLF Senior Counsel Kim Hermann is joined by John J. "Jack" Park, Jr., former Alabama Assistant Attorney General and of counsel at Atlanta-based Strickland Brockington Lewis LLP.

"The U.S. Supreme Court has severely limited government agencies from using race-based quota programs for hiring, declaring such efforts unconstitutional," said Hermann.  "This case provides the opportunity to raise those important precedents against a State Department hiring policy that creates unfair and arguably unconstitutional limits against job applicants based on their race - a practice that was unconstitutional four decades ago, and is just as unconstitutional in reverse today."

Click here for SLF's amicus brief in Shea v. Kerry, No. 15-742 Jan. 8, 2016

Friday
Jan082016

No Non-Profit Spying/Reporting on Donors! IRS Backs Down from Proposed Rule, Jan. 8, 2016

WASHINGTON, DC/ATLANTA, GA:  The Internal Revenue Service today agreed to withdraw its controversial proposed rule calling on non-profit organizations to collect Social Security numbers and other information from donors, who have previously been protected against public exposure and inquiry.  The outcry from the non-profit world, including SLF - which filed a Formal Comment opposing the measure during the administrative review process by the Treasury Department late last year - was overwhelming and pointed to potential legal and constitutional issues raised by the new inquiry mandates.  "The IRS, which continues to answer tough questions about its handling of applications from center-right organizations seeking IRS approval, made a prudent move to withdraw the new rule for personal data collection on donors to non-profit groups," said Todd Young, SLF COO.  "Let's hope and trust this is a permanent withdrawal and not a temporary hold until a new plan to gather data by force of law is designed."

Click here for SLF Formal Comment on Proposed IRS Rule Jan. 8, 2016

Monday
Nov302015

Stop Regulating Private Land: Supreme Court to Consider Alaska Case, Nov. 30, 2015

WASHINGTON, DC/ATLANTA, GA (Nov. 30, 2015):  Southeastern Legal Foundation today filed an amicus brief in the U.S. Supreme Court challenging the unconstitutional executive overreach by the National Park Service (NPS), which is specifically forbidden from regulating private lands and waters that happen to lie within Alaska's national parks and preserves.  Congress specifically declined to grant the NPS authority under the Property Clause and Commerce Clause of the Constitution, yet NPS is doing just that.  The brief is filed at the merits stage, which means the high court will consider the case in the coming months.  Sturgeon v. Frost, et al., No. 14-1209.

Click here for SLF Supreme Court amicus brief Nov. 30, 2015