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Trump Travel Ban Appeal: U.S. Solicitor General Cites SLF Brief to Defend, May 17, 2016

SAN FRANCISCO, CA/BALTIMORE, MD:  Acting Solicitor General of the United States Jeffrey Wall, tasked with defending the Trump Executive Order providing a temporary halt to certain immigration in both the Ninth Circuit Court of Appeals and the Fourth Circuit Court of Appeals this week, relied on SLF's critical amicus brief and referenced it by name. It was the only amicus brief referenced by the government, and one of only a few referenced by either side. Below are the relevant parts of the transcripts.

9th Circuit:


JUDGE HAWKINS: Has the president ever disavowed his campaign statements? 

Has he ever stood up and said, I said before I wanted to ban all members of the Islamic faith from entering the United States of America, I was wrong, I have consulted with lawyers, I'm now addressing it simply to security needs?

Has he ever said anything approaching that? 

MR. WALL: Yes, Judge Hawkins, he has said several things approaching that. 

And I think it's detailed in various amicus briefs. The best one is probably the Southeastern Legal Foundation brief, and part three walks threat right comments and shows that over time the president clarified that what he was talking about were Islamic terrorist groups and the countries that shelter or sponsor them.

And over time, he and his advisers clarify that what he was focused on were groups like ISIS and al Qaeda. 


4th Circuit:

MR. WALL: ... I want to take on ... the bad faith exception, courts never applied it to be sure, Justice Kennedy and Justice Alito indicated it was there, but look what they said, it requires an affirmative showing of bad faith. If that is true for a senior one-off decision, we should require only [more] in order to interfere in a formal national security determination of the President after consultation after multiple Cabinet officials, that is remarkable thing and the bar has to be very high. What we are talking about is reaching back to a handful of campaign statements were I think in fairness the Southeastern ...

JUDGE FLOYD: ... Is there anything other than willful blindness that would prevent us from getting behind those statements?

MR. WALL: Yes, Judge Floyd. Respect for the head of a coordinate branch and the presumption that officials acted legally. I think the Southeastern Legal Foundation did a great job ...


EPA Rule Another Overreach: SLF Files Supreme Court Brief Supporting Challenge Against Boiler MACT Rule, April 25, 2017

WASHINGTON, DC/ATLANTA, GA (April 25, 2017):  In his 2014 UARG v. EPA (134 S. Ct. 2427) opinion for the Supreme Court, Justice Scalia warned the EPA: “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.” 

Unfortunately, the landmark 2014 decision in SLF’s case against the EPA in which the Court struck down the EPA greenhouse gas regulations as a gross exercise of executive overreach, has not curbed its appetite for "more and more and more regulatory power" - without Congressional authorization. 

Today, SLF filed an amicus brief urging the U.S. Supreme Court to grant the petition of American Municipal Power and review EPA’s “Boiler MACT” Rule which arose out of sue and settle efforts between the Sierra Club and EPA.  In lay terms, the Rule outlaws boiler malfunctions – in other words, if any of the 200,000 boilers at any of the 100,000 separate facilities which are directly affected by the regulation malfunction, the owner could be fined by EPA or be dragged into court by a citizen suit.  Notably, citizen groups (such as the Sierra Club) have already made their intentions clear, declaring that they intend to bring enforcement cases. 

As SLF points out in its brief, EPA’s ban on malfunctions is an unconstitutional overreach, is unconstitutionally vague, and was formulated through an unlawful collaboration with outside interests (e.g. Sierra Club).  EPA rewrote the clear language of the Clean Air Act and requires operators to do the impossible and prevent the unpreventable. 

And, what is worse, the Agency did so in collaboration with environmental groups only through its costly and unlawful sue and settle tactics, ensuring that the regulated community had no opportunity to properly comment on the rule.   Because EPA’s actions so blatantly violate the Constitution and ignore Justice Scalia’s warning, SLF is hopeful that the Court will grant review.

Click here for SLF's Supreme Court brief


Nashville "Affordable Housing" - Lawsuit Filed Challenging Unconstitutional Mandatory Set-Aside: "National Trend to Force Socio-Economic Redistribution at Property Owners' Expense", April 24, 2017

NASHVILLE, TN (April 24, 2017):  The Beacon Center of Tennessee and Southeastern Legal Foundation (SLF) today filed a critical constitutional lawsuit challenging the City of Nashville's so-called "affordable housing" mandate on all new housing and rental units, part of "a national trend to force socio-economic redistribution at property owners' expense," according to attorneys filing the litigation.  The Beacon Center and SLF represent the Home Builders Association of Middle Tennessee (HBAMT), who brought the case on behalf of its members in the defense of property owners.

"Nashville has been warned, encouraged to address legal takings issues, and offered solutions to change its ordinance that clearly violate fundamental constitutional private property rights under the U.S. and Tennessee Constitutions and state law," said Kimberly Hermann, SLF general counsel.  "They refused to do so, and we have joined with The Beacon Center of Tennessee to challenge this illegal government action."

The Nashville ordinance is one of dozens of similar ordinances either enacted or under consideration by local governments across the U.S., following a multi-year push by the Obama administration's U.S. Department of Housing & Urban Development (HUD) to expand low-income housing into "higher opportunity areas" - at property owners' expense.

Founded in 1976, SLF is one of the nation's leading constitutional public interest law firms, appearing more than a dozen times each year before the U.S. Supreme Court on issues ranging from property rights to free speech to individual economic liberties and regulatory overreach.

Click here for important background on the case and the law

Click here for lawsuit as filed


TRAVEL BAN, 9th CIRCUIT - SLF Supports Trump, Constitution, April 21, 2017

ATLANTA, GA/SAN FRANCISCO, CA (April 21, 2017):   Southeastern Legal Foundation, alongside one of the nation's top appellate litigators, filed an amicus brief defending the Trump administration's Executive Order 13,780, commonly known as the Travel Ban.  As William S. Consovoy, former clerk for Supreme Court Justice Clarence Thomas and partner with Washington, DC-based Consovoy McCarthy Park, LLC, made clear in the brief to the Ninth Circuit Court of Appeals in San Francisco, CA, several circuits have essentially denied clear statutory and constitutional authority to the Chief Executive by way of citing to campaign statements made months before the November 2016 election - and months before President Trump took the oath of office.

Earlier in April, SLF and Consovoy filed an amicus supporting the Trump Travel Ban in the Fourth Circuit Court of Appeals in Richmond, VA.

Click here for the Ninth Circuit Amicus Brief


TRAVEL BAN APPEAL: SLF Weighs in at Fourth Circuit, April 7, 2017

RICHMOND, VA (April 7, 2017):  Southeastern Legal Foundation, alongside one of the nation's top appellate litigators, filed an amicus brief defending the Trump administration's Executive Order 13,780, commonly known as the Travel Ban.  As William S. Consovoy, former clerk for Supreme Court Justice Clarence Thomas and partner with Washington, DC-based Consovoy McCarthy Park, LLC, made clear in the brief to the Fourth Circuit Court of Appeals in Richmond, VA, several circuits have essentially denied clear statutory and constitutional authority to the Chief Executive by way of citing to campaign statements made months before the November 2016 election - and months before President Trump took the oath of office.

Key excerpt from the brief:

"Over the past few months, the federal courts have been issuing unprecedented rulings that invoke the Establishment Clause to enjoin an executive order barring aliens from entering the United States. Indeed, Executive Order 13,780 is currently subject to several nationwide injunctions on the ground that is was enacted for the purpose of discriminating against Muslims. That conclusion is untenable. The Order’s text treats all religions the same; the effect of the Order is not discriminatory in any constitutional sense; and there are no official statements from government officers indicating that it was enacted for anti-Muslim reasons. Instead, for the first time in our Nation’s history, courts have enjoined a President’s executive order based almost entirely on things he said on the campaign trail. That is precisely what the district court did here."

Click here for the Fourth Circuit amicus brief defending the Travel Ban, April 7, 2017


Taking Private Property for Public Roads - Without Just Compensation - Supreme Court Brief, April 7, 2017

WASHINGTON, DC (April 7, 2017):  SLF joined an amicus brief urging the United States Supreme Court to hear a case brought by a group of property owners challenging the constitutionality of a Mississippi law which essentially allows the Mississippi Highway Commission to transform private property into public property without justly compensating the owner.

In 1952, the Highway Commission invoked eminent domain and took an easement across private property which it used for a highway from 1953 to 2005.  In 2005, the Highway Commission stopped using the easement land for a highway, relocating the highway after Hurricane Katrina destroyed a related bridge.  Despite the easement terminating when the government stopped using the land as a highway, the Highway Commission “repurposed” the land and built a public park.  The property owners sued seeking just compensation for the property unilaterally taken by the government to build the park.

In response the Highway Commission hid behind a state law passed more than a decade after the original 1952 easement, claiming that it could use the land subject to the easement however it wanted.  The case went to a jury, which found that the Highway Commission’s use was beyond the scope of the easement and that the government owed the property owners just compensation.  In a twist, the state court limited damages to $500, claiming that the property would forever remain encumbered by the 1952 easement.  The property owners are now asking the Supreme Court hear its case and, among other things, find that the state court erred in allowing the legislature to redefine an owner’s property without just compensation.

Click here for Supreme Court amicus brief, April 7, 2017



Children's Crusade Climate Change Lawsuit "Most Dangerous Litigation in America," Newsmax, March 22, 2017

SLF's Todd Young unmasks the constitutional dangers involved in a current Ninth Circuit climate change lawsuit filed by 21 children and young adults, represented by ultra-left Our Children's Trust - as published in Newsmax, March 22, 2017

Click here for the article


DAILY BEAST MISSES THE MARK: Gov. Perdue and 2,200 companies represented in SLF's WOTUS challenge, March 15, 2017


March 15, 2017


Todd G. Young

Executive Director

“Southeastern Legal Foundation (SLF) represents a coalition of plaintiffs challenging the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers for its broadly overreaching “waters of the United States” (WOTUS) Rule – a Rule that has been challenged by dozens of states, industry groups, professional and trade associations, and companies as an unprecedented executive overreach well beyond the limits of the Clean Water Act.  Southeastern Legal Foundation, et al. v. EPA, et al.

SLF’s coalition of plaintiffs includes AGrowStar; the Georgia Agribusiness Council, which represents more than 1,000 agribusiness member companies; and Greater Atlanta Homebuilders Association, which represents 1,200 builder companies.  U.S. Secretary of Agriculture-nominee, former Georgia Gov. Sonny Perdue, has served on the Georgia Agribusiness Council Board and is a beneficiary of trusts which own AGrowStar’s parent company.  The WOTUS litigation timeline is important:  the plaintiffs filed suit in U.S. District Court in the Northern and Eleventh Circuit U.S. Court of Appeals on July 13, 2015, and AGrowStar joined in the suit on September 30, 2015.

Contrary to assertions by The Daily Beast (“Trump Signs Rule Making His Agriculture Nominee Rich,” March 14, 2017), it bends credulity and utterly mischaracterizes the facts of the litigation to suggest that Gov. Perdue, by and through AGrowStar, joined the WOTUS litigation in order to gain financial benefit, particularly because the litigation began in 2015.  In order to have standing to sue, plaintiffs must show that they have been or will be harmed by the WOTUS Rule.  AGrowStar, along with the other plaintiffs, have standing to sue precisely because they are able to show harm by the WOTUS Rule.  AGrowStar is certainly not unique nor alone in this challenge - more than 2,200 companies are represented by SLF in this litigation.  The plaintiffs have demonstrated courage to challenge the full might of the EPA on behalf of millions of Americans who are directly and negatively affected by the overreaching and arguably unconstitutional WOTUS Rule.

The current posture of the case is that the WOTUS Rule has been stayed by the Sixth Circuit U.S. Court of Appeals, where the cases have been consolidated.  The U.S. Supreme Court has agreed to hear arguments on jurisdiction questions in the WOTUS litigation, and SLF is preparing arguments for that hearing, which is expected this Fall.  Based on President Trump’s Feb. 28, 2017 Executive Order, the EPA and Army Corps have been directed to review the WOTUS Rule based on Supreme Court precedent and the letter of law under the Clean Water Act and to begin the process of recommending a modified Rule for administrative review.”

Founded in 1976, SLF is a national constitutional public interest law firm that appears regularly before the U.S. Supreme Court.  Landmark Supreme Court victories include the 2014 Utility Air Regulatory Group, et al. v. EPA, 134 S. Ct. 2427 (2014), the so-called “climate change” case, which struck down the EPA’s greenhouse gas regulations as unconstitutional executive overreach beyond the Clean Air Act and without Congressional approval.


Click here for full statement on WOTUS litigation, Gov. Sonny Perdue, March 15, 2017


Profitable Private Property in Jeopardy: Government Taking in Louisiana, March 13, 2017

Atlanta, GA/Louisiana (March 14, 2017):  Southeastern Legal Foundation, along with National Federation of Small Business Legal Center, filed an amicus brief supporting a private company fighting to keep the industrial port facility that its owners spent decades building and growing into a successful business from government takeover and expropriation.  Violet Dock Port’s owners started with just a 1-mile of waterfront property.  Continuous reinvestment and hard work grew the port facility into a 75-acre port that includes five industrial docks, at least two of which are used by the U.S. Navy to keep two ships docket and ready for takeoff at a moment’s notice.

St. Bernard Parish recognized how profitable the privately-owned port facility had become and wanting those profits and government contracts for itself, took the 75 acres.  It was able to do so because under Louisiana law, a government can take property by simply depositing what it believes is “just compensation” in an account with the court and filing a petition to expropriate. The court will then hold a trial on the taking and compensation.  The backwards procedure provides the state and local governments with vast power. 

Violet Dock Port fought the unconstitutional takings, but to no avail.  The trial court and court of appeals ignored the strong evidence in the record supporting the company’s argument that the government took the property solely to limit competition and takeover not only the land, but the business – clients, contracts, and all.  In its amicus brief, Southeastern Legal Foundation urges the Louisiana Supreme Court grant Violet Dock Port’s request to hear the case and return the property – land and company – back to Violet Dock Port.

Click here for SLF amicus brief, March 14, 2017



The latest Newsmax article by SLF's Todd Young outlining the importance of, and actual orders by, President Trump's 30-day efforts to start the process of rolling back the permanent bureaucracy - "deconstructing the administrative state" -

Click here for Newsmax article, March 1, 2017