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Washington Post: Blowing the whistle on the federal Leviathan

July 30, 2012 by

Blowing the whistle on the federal Leviathan

By George F. Will

 

The huge humpback whale whose friendliness precipitated a surreal seven-year — so far — federal hunt for criminality surely did not feel put upon. Nevertheless, our unhinged government, with an obsession like that of Melville’s Ahab, has crippled Nancy Black’s scientific career, cost her more than $100,000 in legal fees — so far — and might sentence her to 20 years in prison. This Kafkaesque burlesque of law enforcement began when someone whistled.

Black, 50, a marine biologist who also captains a whale-watching ship, was with some watchers in Monterey Bay in 2005 when a member of her crew whistled at the humpback that had approached her boat, hoping to entice the whale to linger. Back on land, another of her employees called the National Oceanic and Atmospheric Administration (NOAA) to ask if the whistling constituted “harassment” of a marine mammal, which is an “environmental crime.” NOAA requested a video of the episode, which Black sent after editing it slightly to highlight the whistling. NOAA found no harassment — but got her indicted for editing the tape, calling this a “material false statement” to federal investigators, which is a felony under the 1863 False Claims Act, intended to punish suppliers defrauding the government during the Civil War.

A year after this bizarre charge — that she lied about the interaction with the humpback that produced no charges — more than a dozen federal agents, led by one from NOAA, raided her home. They removed her scientific photos, business files and computers. Call this a fishing expedition.

She has also been charged with the crime of feeding killer whales when she and two aides were in a dinghy observing them feeding on strips of blubber torn from their prey — a gray whale.

To facilitate photographing the killers’ feeding habits, she cut a hole in one of the floating slabs of blubber and, through the hole, attached a rope to stabilize the slab while a camera on a pole recorded the whales’ underwater eating.

So she is charged with “feeding” killer whales that were already feeding on a gray whale they had killed. She could more plausibly be accused of interfering with the feeding.

Never mind. This pursuit of Black seems to have become a matter of institutional momentum, an agent-driven case. Perhaps NOAA, or the Justice Department’s Environmental Crimes Section, has its version of Victor Hugo’s obsessed Inspector Javert.

In any event, some of the federal government’s crime-busters seem to know little about whales — hence the “whistle-as-harassment” nonsense.

Six years ago, NOAA agents, who evidently consider the First Amendment a dispensable nuisance, told Black’s scientific colleagues not to talk to her and to inform them if they were contacted by her or her lawyers. Since then she has not spoken with one of her best friends.

To finance her defense she has cashed out her life’s savings, which otherwise might have purchased a bigger boat. The government probably has spent millions. It delivered an administrative subpoena to her accountant, although no charge against her has anything to do with finances.

In 1980, federal statutes specified 3,000 criminal offenses; by 2007, 4,450. They continue to multiply. Often, as in Black’s case, they are untethered from the common-law tradition of mens rea, which holds that a crime must involve a criminal intent — a guilty mind. Legions of government lawyers inundate targets like Black with discovery demands, producing financial burdens that compel the innocent to surrender in order to survive.

The protracted and pointless tormenting of Black illustrates the thesis of Harvey Silverglate’s invaluable 2009 book, “Three Felonies a Day: How the Feds Target the Innocent.” Silverglate, a civil liberties lawyer in Boston, chillingly demonstrates how the mad proliferation of federal criminal laws — which often are too vague to give fair notice of what behavior is proscribed or prescribed — means that “our normal daily activities expose us to potential prosecution at the whim of a government official.” Such laws, which enable government zealots to accuse almost anyone of committing three felonies in a day, do not just enable government misconduct, they incite prosecutors to intimidate decent people who never had culpable intentions. And to inflict punishments without crimes.

By showing that Kafka was a realist, Black’s misfortune may improve the nation: The more Americans learn about their government’s abuse of criminal law for capricious bullying, the more likely they are to recoil in a libertarian direction and put Leviathan on a short leash.

Filed Under: Media, News

ABC News Reports On Cause of Action’s Suit Against the FDA

July 12, 2012 by

Read the full article here. ABC News

“This means the FDA can reach into your bedroom and tell you how to procreate,” said her lawyer, Amber Abbasi, chief counsel for regulatory affairs at government accountability advocacy organization Cause of Action.”The FDA taking the position that donors, even when there’s no commercial element, are ‘an establishment,’ just like a sperm bank and have to register,” said Abbasi, “this is a serious burden on the reproductive freedoms of both the recipient and the donor.”

Abbasi said her client wanted to obtain fresh donor sperm from an individual she selected and implant it herself in a process known as intracervical artificial insemination — injecting the semen into her cervix — using a syringe, which does not require medical supervision. According to the lawsuit, Doe felt it was important for the biological father to be present in her child’s life, if he or she so desired. Doe did not want to visit a sperm bank for an anonymous sample, a process noted to be “costly and burdensome” for couples looking to get pregnant…”It is a real problem for [the FDA] to treat women like Ms. Doe, who has to become pregnant by artificial insemination because she’s in a lesbian relationship,” said Abbasi…”

Filed Under: News Tagged With:

SFGate: Woman sues FDA for right to use donor’s free sperm

July 9, 2012 by

Read the full story here. SF Gate

“So “Jane Doe,” as she calls herself, is suing. Cause of Action, a government accountability group, has filed a lawsuit in U.S. District Court for the Northern District of California on her behalf against the FDA… Those rules, argues Cause of Action in the lawsuit filed last week, are “costly and burdensome” and “unconstitutional to the extent that they operate to regulate noncommercial, sexually intimate choices and activity.”

“If there are donors like this who are not charging as a service, and not serving as a business, the FDA should not be intervening,” said Amber Abbasi, the group’s chief counsel for regulatory affairs….”

Filed Under: News Tagged With:

The Legal Eagle Eye: The Impact Of The SCOTUS Healthcare Decision

July 3, 2012 by

Why Chief Justice Roberts’s Opinion in NFIB v. Sebelius May Ultimately Advance Economic Freedom and Promote Limited-Government and Federalism Values

By Cause of Action Staff

Although at first blush it may appear that Chief Justice Roberts’s opinion in NFIB v. Sebelius upholding the Affordable Care Act’s individual mandate will lead to a dramatic expansion of federal regulatory authority, proponents of economic freedom, federalism, and limited government may be surprised to learn that Chief Justice Roberts’s opinion reaffirmed and strengthened important limits on the scope of federal power.

First, Chief Justice Roberts concluded that the Commerce Clause—even as augmented by the Necessary and Proper Clause—does not allow Congress to regulate inactivity:  “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity.”   (The four dissenting Justices—Scalia, Alito, Kennedy, and Thomas—agreed.)  Second, Chief Justice Roberts—joined by Justices Breyer and Kagan—concluded that the Medicaid expansion was unconstitutional, reasoning that the portion of the law requiring the States to “either accept a basic change in the nature of Medicaid, or risk losing all Medicaid funding,” exceeded limits on Congress’s Spending Clause authority.  (The four dissenting Justices reached the same conclusion.)  He not only reaffirmed the principle that “Congress has no authority to order the States to regulate according to its instructions” but placed a new limit on Congress’s exercise of its Spending Clause powers:  Congress can no longer use “coercive” financial incentives to compel States to adopt changes that it wants.  Chief Justice Roberts went so far as to describe the Medicaid expansion as “a gun to the head” of the States and “economic dragooning” that is contrary to our system of federalism and principles of dual sovereignty.

With that said, Chief Justice Roberts’s opinion in NFIB v. Sebelius leaves open important questions that the Court may be required to answer in subsequent cases:

(1)  Although Chief Justice Roberts noted that “Congress’s ability to use its taxing power to influence conduct is not without limits,” it is unclear what those limits are.

(2)  It is uncertain whether Chief Justice Roberts’s conclusion that the individual mandate was unconstitutional under the Commerce Clause is part of the Court’s holding (and thus binding precedent) or merely dicta that other courts may ignore.

(3)  It remains to be seen whether the fact that a majority of the Court believed that the individual mandate exceeded Congress’s Commerce Clause authority indicates a willingness to revisit—and scale back—prior case law interpreting Congress’s authority under that clause expansively.

(4) The extent to which Chief Justice Roberts’s new limiting principle for Congress’s use of its Spending Clause power will leave other federal statutes conditioning receipt of federal money on States adopting federal regulatory and policy mandates vulnerable to constitutional challenge is unclear.

Finally, it is worth briefly noting that Chief Justice Roberts’s opinion upholding the individual mandate should not be read as a ringing endorsement of the Affordable Care Act but rather as an invitation for “We the People”—the ultimate sovereign in our constitutional system of limited government—to resolve the issue through the democratic process:

The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.

 

 

Filed Under: Blog

Cause of Action Sues FDA For Overreach Into Private Lives

July 2, 2012 by

 

CAUSE OF ACTION SUES FDA FOR OVERREACH INTO PRIVATE LIVES

FDA prohibits a form of artificial insemination, attempts to define relationships

WASHINGTON – Cause of Action, a nonpartisan nonprofit based in Washington, DC, filed a lawsuit today in the U.S. District Court of Northern California on behalf of a Bay-Area woman whose plans to start a family have been blocked by overregulation by the Food and Drug Administration (FDA).

Citing FDA regulations on sperm donation, Cause of Action states that the plaintiff’s ability to become pregnant through the means of her choice has been directly affected. Cause of Action argues that the right to procreate is fundamental and one that cannot be regulated by a government agency.

“We don’t think the FDA’s intentions are bad—they are trying to protect the public from communicable diseases—but this is literally stepping between two people who have agreed to have a child; the FDA should not regulate that,” said Cause of Action’s Chief Counsel for Regulatory Affairs Amber Abbasi.

Abbasi explains in Cause of Action’s complaint that the plaintiff wants to conceive a child by means of artificial insemination without a medical intermediary such as a donor bank, but is prohibited from doing so by FDA regulations.

Federal regulations set standards for manufacturing and distributing human cells, tissues, and tissue-based products, but they treat noncommercial, individual actors the same as commercial establishments, making any individual a potential human cells, tissue, and tissue-based product producer. Once an individual is labeled as a manufacturer, he is subject to the same regulatory standards as sperm banks. The FDA does exempt people engaged in sexually intimate relationships from the standard, but it is with the government’s attempt to define “relationship” that Abbasi and Cause of Action take the most issue.

“Essentially, the FDA is trying to define a personal relationship and regulate individuals’ intimate decisions,” said Abbasi. “These actions grossly exceed the reach of the FDA’s regulatory authority. If unchecked, it could set a dangerous precedent for the future.”

The lawsuit asks the federal district court to declare the FDA’s regulatory overreach unconstitutional, which will allow the plaintiff to start a family as she desires.

“This case really highlights how arbitrary regulations can take away freedom,” said Dan Epstein, executive director of Cause of Action. “Cause of Action is committed to exposing instances like these where the government is threatening freedom with rogue regulations.”

About Cause of Action:

Cause of Action is a non-partisan, non-profit organization that uses public advocacy and legal reform tools to ensure greater transparency in government, protect taxpayer interests and promote economic freedom. For more information, visit www.causeofaction.org.

To schedule an interview with Amber Abbasi, Cause of Action’s Chief Counsel for Regulatory Affairs, contact Mary Beth Hutchins or Briton Bennett at 202-507-5880.

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Filed Under: Press Release Tagged With:

Cause of Action Sues Delaware Governor Markell And Public Service Commission To Stop Cronyism

June 20, 2012 by

 

CAUSE OF ACTION SUES DELAWARE GOVERNOR MARKELL

AND PUBLIC SERVICE COMMISSION

TO STOP CRONYISM

 

Illegal Scheme Forces Ratepayers to Pick Up Tab for $133 Million Tariff-Subsidy

 

WASHINGTON – Government accountability group Cause of Action (CoA) filed suit today in federal court to challenge Delaware’s sweetheart deal with Bloom Energy, Inc. (Bloom). Governor Jack Markell and the members of the Delaware Public Service Commission are unconstitutionally discriminating against Bloom’s competitors and taxing a segment of Delaware residents to subsidize the crony company.

The suit is brought on behalf of individual plaintiff John Nichols, one of the Delaware ratepayers subject to a special tariff-subsidy created to pay for the deal, and a fuel cell manufacturer whose competitive place in the energy market has been thwarted by the state of Delaware’s scheme to prop up Bloom.

“Delaware has unconstitutionally undermined competitive markets to subsidize one favored company and forced a specific group of Delaware residents to pick up the tab,” said Amber Abbasi, CoA’s Chief Counsel for Regulatory Affairs. “Cause of Action is exposing this burden on taxpayers and businesses and is holding the Governor and the Public Service Commission accountable for violating the Commerce Clause and the rights of the people of Delaware.”

In late 2011, the Delaware Renewable Energy Portfolio Standards Act (REPSA) was modified solely to accommodate the state’s deal with Bloom. In return for Bloom’s promise to construct a manufacturing facility in Delaware, the state established a system of discriminatory eligibility requirements, subsidies, and energy-portfolio-standards multipliers that benefit Bloom. These requirements deny out-of-state companies equal competitive footing and increase costs for Delmarva ratepayers who might otherwise benefit from the competitive interstate market. According to a report by the Delaware Public Service Commission, the cost through tariffs to ratepayers will amount to $133 million.

“There’s no rational basis for forcing Nichols and other Delmarva ratepayers to fund Bloom Energy, while the rest of the state looks on.” stated Dan Epstein, Executive Director of CoA. “Governor Markell and the Public Service Commission are discriminating against competitive businesses in other states to prop up their cronies at Bloom, in direct violation of the U.S. Constitution, and they must be forced to answer for their actions.”

In addition to filing suit against the Governor andthe members of the Delaware Public Service Commission, Cause of Action also filed two Freedom of Information Act requests regarding public comments submitted during the formation of the Bloom tariff and economic impact studies that were submitted in support of the tariff.

The complaint can be found here.

About Cause of Action:

Cause of Action is a non-partisan, non-profit organization that uses public advocacy and legal reform tools to ensure greater transparency in government, protect taxpayer interests and promote economic freedom. For more information, visit www.causeofaction.org.


Filed Under: Press Release Tagged With:

CoA Challenges Dept. of Energy In Lawsuit Over Burdensome Rulemaking Decision

May 30, 2012 by

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Filed Under: Press Release Tagged With: