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DOJ Civil Rights Head In Place Illegally, Actions May Be Void, Nov. 17, 2016

WASHINGTON, DC (Nov. 17, 2016):  The U.S. Department of Justice Civil Rights division has been working in violation of federal law for more than a year and half, making several important decisions that are likely "void and . . . not subsequently ratified," according to Heritage Foundation constitutional scholar Hans von Spakovsky.

In a powerful article appearing today in the Daily Signal, von Spakovsky points out that a pending U.S. Supreme Court case, NLRB v. SW General (a case in which SLF joined as amicus - brief here), confirmed in a district court opinion that the Federal Vacancies Reform Act means what it says - the President must affirmatively appoint certain positions, including the assistant attorney general in charge of the DOJ Civil Rights division.  Failure to do so in the case of "acting deputy" Vanita Gupta means that she is serving without authority and, by the letter and intent of the law, her decisions and actions may be void and of no effect.



EPA'S "Waters of the United States" (WOTUS) Overreach - Merits Arguments Start in Sixth Circuit

ATLANTA, GA (Nov. 3, 2016):  More than a year ago, Southeastern Legal Foundation (SLF) filed our challenge to the EPA and Army Corp’s over-broad definition of “waters of the United States” (WOTUS Rule), under the Clean Water Act.  While the Supreme Court has not yet ruled on the proper venue for such a challenge, briefing on the merits of the case has started in the Sixth Circuit Court of Appeals.  This week, SLF filed its joint industry opening brief arguing that the WOTUS Rule is invalid on its face and should be struck down.  Through the WOTUS Rule, the EPA and the Army Corps seeks to control nearly every piece of land in the United States.  Its unprecedented scope is irreconcilable with the Constitution, congressional intent, and Supreme Court precedent.  Briefing will continue through the end of March 2017.

Click here for SLF Sixth Circuit Merits Brief Challenging WOTUS



High-Level Government "Forget You..." - Freddie Mac Exec Takes Stand for Fifth Amendment Rights in Supreme Court, Oct. 21, 2016

ATLANTA, GA/WASHINGTON, DC (Oct. 21, 2016):  Southeastern Legal Foundation, joined by Cato Institute, today filed amicus brief in the U.S. Court of Appeals for the Federal Circuit supporting Anthony Piszel’s pursuit of justice and dedication to the rule of law. 

Mr. Piszel was the one-time CFO of Freddie Mac, a private lending organization sponsored by the government to provide stability in the housing market.  He was hired in 2006, and as part of his compensation package he was to receive stocks, incentive-based bonuses, and in the event of termination, a lump-sum payment.  When the federal government bailed-out the banks, it also created the Federal Housing Finance Agency (FHFA), which subsequently took over Freddie Mac, a private company.  FHFA nearly immediately ordered Freddie Mac to cancel Mr. Piszel’s contract “without cause” and to not pay him the previously lump-sum payment. 

Mr. Piszel filed suit alleging that the government took his contractually guaranteed property and thus, violated the Fifth Amendment.  The lower court found Mr. Piszel had no property interest in his contract.  On appeal, a three-judge panel of the Federal Circuit correctly disagreed, holding the Mr. Piszel not only had a contractual property right protected by the Constitution.  However, the court continued and found that Mr. Piszel’s right was not “taken” because he could still sue for breach of contract.   Mr. Piszel has now asked the Federal Circuit for en banc review.  The three-judge panel was wrong and allows the government to terminate private contractual rights in direct violation of the Fifth Amendment.

Click here for SLF's Supreme Court amicus brief, Piszel v. U.S., Oct. 21, 2016



Virginia Districting Plan - U.S. Supreme Court takes up racial component, Oct. 20, 2016

ATLANTA, GA/WASHINGTON, DC (Oct. 20, 2016):  Southeastern Legal Foundation today filed a brief in support of the Virginia House of Delegates and its districting plan, which was upheld by the lower court.  Challengers argue that race was not considered as a "strong enough" factor when the districts were drawn, while SLF argues that Supreme Court constitutional precedent warns against using race as a determining factor when legislative districts are drawn.

Click here for Golden Bethune-Hill v. Virginia State Board of Elections U.S. Supreme Court amicus brief, Oct. 20, 2016


CLINTON CAMPAIGN COORDINATING WITH NON-PROFITS, SUPER PACS: Project Veritas Action Bombshell Video, Oct. 17, 2016

ATLANTA, GA/Oct. 17, 2016:   Project Veritas Action's release today of blockbuster evidence showing collaboration between the Clinton presidential campaign, the DNC, Super PACs and non-profit organizations exposes a "clear and present danger to the integrity of the American election system."

Click here for SLF's statement, Oct. 17, 2016


U.S. Supreme Court Petition - SLF Joins Industry, Non-Government Groups in filing brief in support of petition on jurisdiction in massive WOTUS (Waters of the United States) EPA overreach case, Oct. 6, 2016

Click here for brief



A Senate Report on the Expansion of Jurisdiction Claimed by the Army Corps of Engineers and the U.S. Environmental Protection Agency under the Clean Water Act

United States Senate Committee on Environment and Public Works


September 20, 2016


Executive Summary

Case studies presented to the Senate Environment and Public Works Committee demonstrate that the U.S. Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers’ (Corps) new regulation defining “waters of the United States” (WOTUS), promulgated on June 29, 2015, will codify many of the most extreme overreaches of federal authority asserted by these agencies.

Although the new regulation is currently stayed, pending the outcome of litigation challenging the rule, these case studies demonstrate that assurances given by EPA and the Corps regarding the scope of the WOTUS rule and its exemptions to the positions taken by these agencies in jurisdictional determinations and in litigation are factually false.

The following conclusions can be drawn from these case studies:

• EPA and the Corps have and will continue to advance very broad claims of jurisdiction based on discretionary authority to define their own jurisdiction.

• The WOTUS rule would codify the agencies’ broadest theories of jurisdiction, which Justice Kennedy recently called “ominous.”

• Landowners will not be able to rely on current statutory exemptions or the new regulatory exemptions because the agencies have narrowed the exemptions in practice and simply regulate under another name. For example, if activity takes place on land that is wet:

  • plowing to shallow depths is not exempt when the Corps calls the soil between furrows “mini mountain ranges,” “uplands,” and “dry land;”
  • discing is regulated even though it is a type of plowing;
  • changing from one agricultural commodity constitutes a new use that eliminates the exemption; and,
  • If Congress does not act, the newly won ability to challenge Corps jurisdictional determinations and claim exemptions will be moot because the WOTUS rule establishes jurisdiction by rule that will extend to all the activities described in the case studies.

Click here for Full Senate Report on WOTUS/EPA Overreach, Sept. 20, 2016


Private Flight-Sharing At Risk: FAA Oversteps, SLF and Allies Argue to Supreme Court, July 29, 2016

WASHINGTON, DC/ATLANTA, GA, July 29, 2016:  Southeastern Legal Foundation (SLF) today 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 Federal Aviation Administration 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.

Click here for Supreme Court amicus brief, Flytenow, July 29, 2016


Nashville "Affordable Housing" Forced Set-Asides: Beacon Center of Tennessee and SLF Warn Mayor of Constitutional Problems, July 28, 2016

NASHVILLE, TN/ATLANTA, GA, July 28, 2016:  The Beacon Center of Tennessee and Southeastern Legal Foundation (SLF) today raise constitutional concerns about a proposed "affordable housing" mandatory set-aside currently being considered by the Metro Nashville City Council. 

In a letter sent today to the Mayor and city legal counsel, The Beacon Center and SLF explain that the proposed "affordable housing" ordinance that passed its first reading in the Council is not only illegal under state law, but is also unconstitutional.

The law requires that a property owner set aside a certain percentage of his or her inventory to sell at below the market value.

This comes after the city of Franklin recently indicated to the Beacon Center that it will repeal its affordable housing mandate. According to the Franklin City Attorney, city officials are currently drafting an ordinance to delete the law from the books. 

Beacon Director of Litigation Braden Boucek explained, "Affordable housing mandates like the one proposed by Nashville force private individuals to bear the cost burden, rather than taxpayers generally, to address the housing question. We applaud the city of Franklin for taking action after Beacon pointed out the legal issues with affordable housing mandates, and we hope the Nashville government will take notice. If this is a problem that needs to be addressed, then governments should address it, not force private parties to bear the whole burden." 

Boucek went on to note, "This particular housing mandate is unconstitutional and antithetical to the basic idea of fairness. This law is anything but affordable for most of the people involved. It simply forces tenants to pay more to cover the additional costs." 

Kimberly Hermann, Southeastern Legal Foundation senior counsel, explained, "This proposed ordinance is inconsistent with our principles of economic freedom and limited government. Forcing developers to sell the homes they build at a loss poses very serious legal and constitutional problems. Likewise, ordering homeowners who want to make improvements to their property to pay a fee into a city fund raises additional legal questions about fees and taxes."  More to follow on this important issue, as a number of cities across the U.S. are considering similar measures.

Click here for The Beacon Center/SLF Letter sent to Nashville government, July 28, 2016


Federal Government ‘Eminent Domain’ – No Trial By Jury – SLF, NFIB, and CATO Institute File Amicus in Sixth Circuit, July 15, 2016

ATLANTA, GA/CINCINATTI, OH, July 15, 2016:  Southeastern Legal Foundation joined the National Federal of Independent Business and the Cato Institute on an amicus brief supporting property owners’ right to a trial by jury when the government tries to take their property through the power of eminent domain.

In Michigan, the federal government used eminent domain to take property from a group of landowners.  Recognizing that property is the foundation for the other civil rights that we enjoy and that the federal government’s actions likely resulted in an unconstitutional takings, the landowners filed suit in a federal court and asked the court to, at a minimum, find they are due just compensation. 

The suit also challenged a provision of the Tucker Act that directs suits against the federal government over $10,000 to be brought in the Court of Federal Claims (a legislative tribunal rather than an Article III court) as violating the Seventh Amendment.  Thus, the landowners were challenging the denial of their constitutional right to a trial by jury. 

The district court sided with the government, shielding the government from constitutional checks and balances that protect individual property rights.  Under the district court decision, the federal government can take your property and will never have to answer to a jury.  

As argued in the amicus brief, the district court’s opinion conflicts not only with the Constitution, but also with Supreme Court precedent.  Less than 20 years ago, the Supreme Court held that because parties asserting takings claims seek compensation, those claims would have been heard by a court of laws (Article III court) at the time the Seventh Amendment was ratified.   The Supreme Court has never barred a party from a trial by jury simply because the federal government seeks to exempt itself from such scrutiny, and the Sixth Circuit Court of Appeals has no reason to do so here.

Click here for SLF/NFIB/CATO Institute Amicus Brief, July 15, 2016