Is Obama's Shutdown War on Private Business Illegal Racketeering?
Has President Barack Obama violated the Racketeer Influence and Corrupt Organizations ("RICO") Act with his hardball tactics over the government shutdown, to extort taxpayer funds?
"We've been told to make life as difficult for people as we can," an angry National Park Service ranger told Washington Times columnist Wesley Pruden. "It's disgusting" The park ranger indicated that there is a political motive behind the closure of the open-air memorials.
The Park Service went out of its way to prevent tourists from taking photographs of Mt. Rushmore, far beyond any legitimate closure. The Park Service is actively blockading tourists from simply stopping along the public road to take a photograph from afar.
Government websites cost nothing to leave in place. Yet the government spent extra money to turn websites off.
Mt. Vernon is privately funded and operated, on private land, using no federal funds. Yet the Park Service barricaded a nearby stretch of road where buses turn, to maliciously harass and interfere with the public's use of the 100% privately funded historic plantation.
Only high-profile, familiar, or popular sites are being shut down. Thousands of lesser-known parks, memorials, and sites remain open. A senior administration official coldly told the Wall Street Journal: "We are winning. ... It doesn't really matter to us" how long the shutdown lasts.
Obama -- once editor of the Harvard Law Review and a constitutional law teacher -- is committing a huge legal error. In real estate law, a tenant has legal "possession" and control of land under a lease. When private businesses lease federal land, the U.S. government has no authority to interfere with "quiet enjoyment."
The legal meaning of a lease is that the owner gives up occupancy, possession, and control of land for money. As long as a tenant pays rent and complies with the agreement, a landlord has no legal right to suspend the tenant's use of property.
For over a week, private inns and businesses along the Blue Ridge Parkway have been barricaded by armed park rangers from the National Park Service, blocking entrances with their police cruisers. The Pisgah Inn filed a lawsuit in Court Tuesday in North Carolina, seeking a preliminary injunction to stop park rangers from harassing the private business.
The National Park Service's actions are completely illegal. Without going to court and proving that tenants have violated their leases, the government may not suspend or interfere with a tenant's use of the land they are paying for.
The Pisgah Inn has leased federal land since the 1940s. Manager Bruce O'Connell explains that almost 95 workers are out of work at the busiest time of the year -- as the leaves change. In October, his workers normally make much of their money for the rest of the year.
Adding to the farce, the Blue Ridge Parkway itself is open, but many businesses along it have been forcibly closed. Another North Carolina hotel, the Peaks of Otter Lodge, closed. In Philadelphia, NBC 10 reports that the City Tavern restaurant was ordered to close, since it sits inside Independence National Historical Park.
In McLean, Virginia, the non-profit, private Claude Moore Farm Foundation operates a colonial-era farm as a living museum. Since 1980, the Foundation has held a long-term lease from the U.S. government. Yet the Park Service barricaded Claude Moore Farm and shut it down.
In Nevada, Joyce Spencer, 77, and her husband Ralph, 80, were kicked out of their home. The couple has owned the home since the 1970s, under a lease of federal land. They were given 24 hours to get out.
The U.S. government is actually trespassing by interfering with tenants on federal land. The U.S. Supreme Court has found an unconstitutional "taking" in violation of the Fifth Amendment when the government stops a tenant from using leased land (United States v. General Motors Corp, 323 U.S. 373 ). Also, a temporary interruption in the use of real estate can be a taking (First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 ). The government is also guilty of tortuous interference with business expectancy and liable to pay for all losses.
Meanwhile, the Obama administration has ordered 1,100 square miles of the ocean closed around Miami's Biscayne Bay, reports the Miami Herald. The National Park Service ordered all private businesses like charter boats to cease operations in 1,100 square miles of ocean, including Biscayne National Park. This threatens the tourist economy of Florida and hundreds of private businesses, putting pressure on Congress.
The Obama administration's actions are illegal. The operating licenses involved cannot be suspended on a whim. If you are found guilty of a serious violation, your driver's license can be revoked or suspended, but not without due process and a finding of fault. No authority exists for the government to stop licensed captains from sailing, even with paying passengers.
Senior Chief Geoff Ross (U.S. Navy, Ret.) is calling for boat captains to break the blockade.
Clearly, this is blackmail. This is a naked shakedown. Individuals within the administration, acting "under the color of law," are causing unnecessary economic harm, damage, and pain and are intentionally and maliciously harassing and interfering with businesses, tenants, and the general public. The purpose is to obtain taxpayer money from Congress by extortion for Obama's favored projects and people.
U.S. Supreme Court precedents are clear: a RICO violation includes any type of threats of economic harm in order to gain by coercion money or any financial advantage or benefit. A RICO violation occurs when an "enterprise" operates, through a pattern of two or more predicate acts, to gain any type of benefit, money, or advantage.
A predicate act can be any of hundreds of various illegal acts. (It does not matter if anyone has actually been prosecuted.) However, one example is the Hobbs Act, which prohibits any type of coercion, threats, intimidation, etc. to obtain any money, financial advantage, or other benefit. The Hobbs Act is exceedingly flexible and broad. It does not matter if benefits are received by the wrongdoer or are directed to benefit another person or organization.
Any adversely affected businesses or employees who have lost money can bring their own civil lawsuit to recover triple their losses plus generous attorneys' fees under RICO. However, only those who have directly lost money have the standing to challenge Obama's racketeering. Whether brave businesses and attorneys can be found remains to be seen.
At midnight on September 30, the U.S. Government did not shut down. Instead, authority to spend appropriated funds expired at the end of the fiscal year. Congress has not yet passed most of the 13 appropriations bills. Other money exists in dedicated funds, such as the Social Security trust fund, which are unaffected.
But there is no legal authority or basis to "shut down" anything. Yet Obama has interpreted lack of funding for the next fiscal year as a requirement to actively "shut down" all use of any national resources, even if it costs more.
If we do not aggressively challenge this lawlessness and series of abuses, the dream that was America will surely slip into the night. The U.S. House of Representatives is investigating. They should also impeach from office the Director of the National Park Service.