Pacific Legal Foundation: Property Rights & Obamacare. Presented by: Paul J. Beard II Principal Attorney

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1 Pacific Legal Foundation: Property Rights & Obamacare Presented by: Paul J. Beard II Principal Attorney

2 PACIFIC LEGAL FOUNDATION Founded in 1973 by officials in then-governor Ronald Reagan s administration. Response to ACLU and other left-wing outfits. Purpose: to fight for property rights and individual freedom in the courts of law. Represent individuals/associations for free in precedent-setting cases. Depend entirely on charitable contributions from those who are passionate about our Founding principles. Practice Areas

3 The Takings Clause of the Fifth Amendment nor shall private property be taken for public use, without just compensation.

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7 Dolan v. City of Tigard How close a fit must there be? Who has the burden of proving it?

8 Unanswered Questions Do Nollan and Dolan apply to exactions beyond those that take easements in land? Is money private property that can be taken w/in the meaning of the TC? Do they apply when a permit is denied for failure to accept conditions?

9 Koontz v. SJRWMD Coy Koontz bought 15 acres of land 40 years ago in OC, Florida. He began the process to develop 3.7 acres of it 19 years ago. No wetlands on the site. The District imposed 2 conditions as mitigation. When Koontz refused the off-site condition, the permit was denied.

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11 Koontz in the Florida Courts The Florida trial and appeal courts found a N/D violation in the off-site exaction. The Florida Supreme Court reversed: Coy Koontz never accepted the permit and was thus never subject to the conditions Nollan and Dolan apply only to exactions of land, not money

12 Any limits? CHIEF JUSTICE ROBERTS: Is there anything in the Federal Constitution that limits the conditions that you can demand? MR. WOLFSON: I don t not not if I understand your question, Mr. Chief Justice, I don't think so.

13 C.J. ROBERTS: Just to nail it down, your position is that there is no limit in the Federal Constitution on what the agency can demand as a condition for the issuance of a permit? MR. WOLFSON: No, no, no, I don't think that is our position. First of all, the Due Process Clause may certainly impose conditions. The Equal Protection Clause may certainly impose conditions. C.J. ROBERTS: But the Takings Clause does not.

14 Money Is Magical? JUSTICE SCALIA: As I understand your position, cash is magical, right? The government can come in and come into my house, take all of the cash that's there, and that is not the basis for takings claim, right? Because cash is not is not a taking. Does that make any sense?

15 MR. WOLFSON: the problem with extending the takings concept to a monetary obligation which can be paid for out of sort of undifferentiated funds - JUSTICE SCALIA: Right. MR. WOLFSON: - is that it has no logical stopping point. I mean, the court - JUSTICE SCALIA: The stopping point is don't take my cash. Your answer to my question is: That's okay, it's not a taking, right? I may have some other cause of action, but not a -- not a taking? The government's come in and taken my money.

16 U.S. Supreme Court Decision Holding No. 1 (unanimous) N/D apply to both conditions precedent and conditions subsequent. Holding No. 2 (5-4) N/D applies to an exaction even when it s for money.

17 The Patient Protection and Affordable Care Act in a Nutshell Explicit Goal: Insure everyone. Implicit Goal: Nationalize our healthcare system. Means: Force insurance companies to accept everyone, even those with pre-existing conditions. Force everyone to get federally mandated health insurance plan young and old, and healthy and unhealthy, alike.

18 The Individual Mandate By 2014, most legal residents in the U.S. must purchase and keep minimal essential health insurance. No self-insurance permitted. No catastrophic policies allowed. Hefty penalty for noncompliance. Exceptions for American Indians, religious objectors, those living abroad, etc. You must enter the marketplace and buy a service (health insurance), whether or not you want/need it.

19 Sounds like a good policy! Maybe, but Is it constitutional?

20 Are you serious? Ex-Speaker Nancy Pelosi

21 The federal government can, yes, do most anything in this country. Congressman Pete Stark

22 The IM & Penalty IM & Penalty justified on Commerce Clause grounds Commerce Clause: Congress has power to regulate interstate commerce. Does that presuppose commercial activity? USSC: IM violates Commerce, BUT penalty is a tax within Congress s Tax Power. If it s a tax, does the penalty satisfy other provisions of the Constitution?

23 Origination Clause All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

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25 Sissel v. U.S. Dep t of HHS Filed in D.C. District Court Client: Matt Sissel Successful artist from Iowa Young, healthy, and financially stable. Pays med expenses out of pocket. Doesn t have, want, or need, health insurance. Would rather invest in his career & education. Challenges IM as beyond CC power Motion to dismiss pending How is this case unique/different from others?

26 For more information, please visit: pacificlegal.org

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