Recently in Government Regulation Category

Now that U.S. District Court Judge Roger Vinson has declared the entire Patient Protection and Affordable Care Act (PPACA) void because it is unconstitutional, implementation should cease, states the Association of American Physicians and Surgeons.

While the Judge did not issue an injunction prohibiting implementation, he stated that his "declaratory judgment is the functional equivalent of an injunction." This is so because of the long-standing presumption "that officials of the Executive Branch will adhere to the law as declared by the court."

The Obama White House, however, called the decision "a plain case of judicial overreaching," and intends to proceed without interruption to carry out the law. Two courts have now declared the individual mandate unconstitutional, while two have upheld it. The Supreme Court will ultimately resolve the issue.

"Whenever the legislature passes a law that progressives object to, such as regulations on abortion, courts immediately stay enforcement," notes AAPS executive director Jane M. Orient, M.D. But this case is apparently very different.

"Congress defied the will of American voters in passing the Act," she stated, "and now the Administration will defy the Court, spending billions of dollars on implementing the Act while the courts proceed."

Individuals and businesses are already being forced to alter their financial decisions in anticipation of the mandate's taking effect in 2014, the Judge noted.

The harm that many anticipate from the Act is shown by the 773 waivers that HHS has already issued to protect current benefits.

The Judge cited Congress itself concerning the dependence of the Act on the individual mandate. In fact, in including it, Congress was "essentially admitting that the Act will have serious negative consequences, e.g., encouraging people to forego health insurance until medical services are needed, increasing premiums and costs for everybody, and thereby bankrupting the health insurance industry."

The individual mandate is imposed to try to avert adverse consequences of the Act itself. Applying the Necessary and Proper Clause to justify it would have the perverse effect that the more disruptive a statute is, the more "necessary" a statutory fix would be.

"Senators need to abide by their oath to uphold the Constitution, and act promptly to repeal this unconstitutional bill," Dr. Orient stated.

SOURCE Association of American Physicians and Surgeons (AAPS)

Earlier this morning, the U.S. Court of Appeals for the Seventh Circuit issued a divided ruling upholding Illinois' mandatory moment of silence law.  The law requires all Illinois public schools to begin the school day with a moment of silence "for silent prayer or for silent reflection on the anticipated activities of the day."   In January 2009, a U.S. District Court found the law to be unconstitutional.  Today's ruling reverses that decision.   The following statement can be attributed to ACLU of Illinois Senior Staff Counsel Adam Schwartz:

The American Civil Liberties Union of Illinois is disappointed that this divided appellate court panel today gave its endorsement to a statewide law that coerces children to pray in our public schools.  In the words of Appellate Judge Williams' dissent from this decision:

"The Act makes what I believe to be an unnecessary reference to prayer, signaling a predominantly religious purpose to the statute.  And by enumerating prayer as one of the only two specific permissible activities, the Act conveys a message that Illinois students should engage in prayer during the prescribed period as opposed to a host of other silent options."

Judge Williams also concluded the government's supposed secular purpose - calming children - was a "pretext," among other reasons because legislative sponsors equated the moment of silence in school with the prayers recited each day before the General Assembly convenes.

The appellate court's majority also ignored District Judge Gettleman's determination below that under the law, a "teacher is compelled to instruct her pupils, especially in the lower grades, about prayer and its meaning..."   This is not the appropriate role of public schools.  Beyond encouraging prayer, the law also prefers those religions that practice silent prayer over those that do not.

As the courts long have recognized, it is not the role of government (including public schools) to tell children when and how to pray.   Religious exercise is a matter for students and parents, not politicians and school officials.

Even without this law, students in Illinois remain free to pray on their own, in a non-disruptive manner, throughout the school day.  Public school students in Illinois do not require the permission of the General Assembly to engage in this constitutionally protected activity.  

SOURCE ACLU of Illinois

The American Trucking Associations (ATA) today joined petroleum refiners and other end-users in a legal challenge to California's recently enacted low-carbon fuel standard (LCFS). The regulation adopted by the California Air Resources Board requires annual reductions in the carbon intensity of gasoline and diesel over the next ten years. The LCFS regulation falls directly upon fuel providers (refiners, importers and blenders of fuel), but will impact end-users because of associated fuel price increases.

The legal challenge is largely based on the Commerce Clause with assertions that the "shuffling" of low-carbon fuel to California and away from other states will significantly burden fuel providers and consumers without any net change in fuel's carbon-intensity on a global scale, resulting in no reduction -- and a likely increase -- in greenhouse gas emissions.

"The LCFS would essentially ban imports to California of fuels derived from unconventional sources such as oil sands from Canada, oil shale from the Western U.S., or domestic coal supplies that can be converted into transportation fuels," said ATA Vice President Rich Moskowitz. "Discouraging these fuels will simply increase costs while failing to prevent their export to and consumption by other nations."

The Complaint, filed in United States District Court in California, also challenged the regulatory scheme as discriminating in favor of California-produced fuels by assigning them lower carbon-intensity ratings because of shorter transportation distances to users. Others joining the suit include the Center for North American Energy Security, Consumer Energy Alliance and National Petrochemical and Refiners Association.

The American Trucking Associations is the largest national trade association for the trucking industry. Through a federation of other trucking groups, industry-related conferences, and its 50 affiliated state trucking associations, ATA represents more than 37,000 members covering every type of motor carrier in the United States.

SOURCE American Trucking Associations