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Wednesday, March 21, 2012

The Sacketts Get Unanamous SC Decision

The issue here was only whether the Sacketts could seek court review on an EPA order. It's not a decision ruling that the EPA order was wrong. The Sacketts claim that the property is not wetlands and that EPA does not have the authority to regulate the land as if it were. This case merely rested on the question of whether the Sacketts could challenge the EPA's action in court.

EPA's argument was that the ability of regulatees to seek court redress would totally mess up their whole deal and fundamentally change the regulatory structure that Congress had created. They also claimed that their decision wasn't final yet (because they hadn't yet sued the Sacketts to make them do it). The court reacted badly to that claim.

Recently Congress has been passing a lot of statutes that preclude judicial review. That may be putting the SC's back up somewhat. Obviously in this case, the potential harm is very great if the EPA oversteps its authority - without the ability to challenge the ruling in court the Sacketts had no way to seek any sort of reconsideration, and fines mount up quickly.

The range of views behind this very narrow ruling is significant. Alito's concurrence states that Congress needs to act because the EPA has overstepped its authority:
Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act. When Con gress passed the Clean Water Act in 1972, it provided that the Act covers “the waters of the United States.” 33

U. S. C. §1362(7). But Congress did not define what it meant by “the waters of the United States”; the phrase was not a term of art with a known meaning; and the words themselves are hopelessly indeterminate. Unsurprisingly, the EPA and the Army Corps of Engineers interpreted the phrase as an essentially limitless grant of authority. We rejected that boundless view, see Rapanos v. United States, 547 U. S. 715, 732–739 (2006) (plurality opinion); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167–174 (2001),but the precise reach of the Act remains unclear. For 40 years, Congress has done nothing to resolve this
Well, dear, don't hold your breath waiting for Congress to take up the matter.

Ginsburg wants to make the ruling as limited as possible. She does not wish her vote here to be interpreted as allowing judicial review of the content of the compliance order, but rather just judicial review of the argument that the Sackett property was wetlands:
Faced with an EPA administrative compliance order threatening tens of thousands of dollars in civil penalties per day, the Sacketts sued “to contest the jurisdictional bases for the order.” Brief for Petitioners 9. “As a logical prerequisite to the issuance of the challenged compliance order,” the Sacketts contend, “EPA had to determine that it has regulatory authority over [our] property.” Id., at 54–55. The Court holds that the Sacketts may immediately litigate their jurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on that question. Whether the Sacketts could challenge not only the EPA’s authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order, is a question today’s opinion does not reach out to resolve. Not raised by the Sacketts here, the question remains open for another day and case. On that understanding, I join the Court’s opinion.
Still, I wonder. This is a huge slapdown of the EPA in fact; the ability to challenge such orders in court changes the balance of power, and various legal associations have a strong interest in doing so, so it is likely that selected test cases will be brought to court.

To some degree, the court as a whole regardless of any individual ideological, legal or political leanings, is strongly biased toward both the workability of the legal structure and the necessity for the legal structure to provide a path for parties to seek redress for injury. The more that Congress passes legislation precluding judicial review of regulatory determinations, the more Congress is risking the eventual case that litigates the question of whether such clauses in legislation are themselves unconstitutional. Such a case would be fact specific, but I think the day is coming.

I also suspect that Congressional attempts to place certain pieces of laws passed out of Congressional modification reach will increase SC resistance to legal clauses blocking judicial review. The court tends to respond cohesively when it appears that some executive interpretation of the law will shift the Constitutional balance of power in a meaningful way.

This is one of the most interesting legal questions of our time, and in some sense, it comes into play in two of the currently hot issues. The health care reform law blocks judicial review of many of the regulatory decisions set up in the law, and it also places limits upon the ability of future Congresses to modify decisions by law. The inflexibility and "reach" of such a law is potentially great. The various budgetary laws also set up such restrictions purporting to bind not only the current Congress but future Congresses, and that too sets up an interesting situation.

I think ACA is clearly unconstitutional, but unconstitutional based on equal protection/due process considerations, so the law may survive its first SC court ruling. But this decision implies that it definitely will not survive long after inception. Fiscally, the law is utterly unworkable unless the subsidized insurance packages cover very little, and this sets up huge equal protection/due process issues.

The sad part comes in the fact that the legislative branch WANTS to abdicate its power and responsibilities to the executive branch yet wants to pretend it can force the judicial branch to do the same.

The scary part is there are plenty in the judicial branch that DO want to abdicate power and responsibility to the executive branch. These people want the jobs and authority but none of the responsibility. Essentially they want to be able to avoid making tough decisions with the "My hands are tied" defense. A la Eichmann.

At some point it is nothing short of enabling a future dictator - and that can only end with extreme violence.
Charles, I agree with you. This is all an outgrowth of administrative law where Congress abdicates the real rules to the administration. Obviously, with the case at hand, it Congress had been responsible for the rules, they would never have allowed fines to accumulate while awaitint the EPA to finally sue. This whole situation reeks to high heaven.
That's true, Charles. Congress does want to slide away from these issues - they don't want to have to take blame for them.

Health care reform is a similar attempt.

I don't think the low approval ratings of Congress are any surprise given Congressional behavior.
I don't think it's a matter of taking blame. Critters are perfectly happy to have signing ceremonies and blab about the bills for the cameras. Speaker Pelosi was quite proud to say "We have to pass the bill so you can find out what's in it."

The old Progressive theory, going back to TR's Progressive Republicans, is that "impartial" bureaucrats insulated from politics are the best people to create the detailed regulations required to make sure the benighted populace acts in their own self-interest. Legislative give-and-take is too unwieldy for this delicate task, so huge hunks of power are hived off and awarded to the executive, under Congressional supervision, of course. That's why Congressional hearings are so important.

That's what we have now; the Progressive theory of government in its dotage, having been taken to ridiculous extremes.
My boyfriend has a place on the Columbia that was homesteaded before WA was a state. We have Army Corps of Engineer pictures showing boats and a dock there back in 1929. We are currently in a lawsuit with the state DNR over being able to have a dock and boats at the property. (That's the short explanation.) I have read his files at the state capitol, where they have basically treated him like a criminal for wanting to have use of the river. So yeah, I am very happy to see the SC put some limits on what the bureaucrats can do. Otherwise, government becomes a bully. And paying taxes on a place gets you no respect.

I believe back in TR's day it was at least still expected that when a new party won the White House all the existing bureaucrats would be fired and replaced, not just the cabinet. But for the last 60+ years those jobs are now protected - the bureaucrats can't be fired. That is the crux of the problem. Even a President hell-bent on change (something Obama clearly is not) has no ability to change the culture of existing agencies. Shuffling the org chart around really doesn't change anything - and Congress never seems interested in reducing the budgets of executive-level agencies.

Checks and balances are a good idea, and long as all 3 branches are interested in doing it. Congress opted out decades ago and the judicial branch is slowly doing the same.
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