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Bench Memos

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Extremism in the Defense of Big Government



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The Department of Justice, led by Attorney General Eric Holder, has been accused of politicizing the department, for example pressuring the City of St. Paul to drop a lawsuit challenging “disparate impact” litigation because it feared the lawsuit’s success. It has also seen its positions soundly rejected by the Supreme Court, as in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, where the Supreme Court unanimously rejected the department’s extreme position that the federal government has the authority to tell religious organizations who they can hire and fire. The case of Sackett v. EPA demonstrates both problems, wrapped into one unanimous (9–0) opinion.

Sackett rejects the Obama administration’s extreme position that property owners should not have a right to judicial review of the Environmental Protection Agency’s determination that their use of their property violates the Clean Water Act.The plaintiffs were Michael and Chantell Sackett, a couple who tried to build a house on their two-thirds-of-an-acre residential lot in Idaho. The EPA ordered them to stop development and “immediately undertake activities to restore the Site in accordance with [an EPA-created] Restoration Work Plan.” According to the EPA, their property contained wetlands and when they filled part of their lot in with rocks and dirt in preparation for construction they “engaged, and are continuing to engage, in the ‘discharge of pollutants’ from a point source” in violation of the Clean Water Act.

Not surprisingly, the Sackett’s sought to appeal the EPA’s decision rather than go through with the construction of the house and risk a fine of up to $75,000 per day. The Obama administration maintained that they did not have a right to judicial review, and the case made its way to the Supreme Court. Not surprisingly the Court rejected the EPA’s self-serving opinion that it could take away the Sackett’s property rights, while threatening coercive heavy fines for non-compliance, without providing for judicial review; the Obama administration’s position was too extreme for even President Obama’s appointees to the Court. I doubt anyone outside of DOJ is shocked that the decision was unanimous. As Justice Scalia stated in his opinion for the Court:

The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.  And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review — even judicial review of the question whether the regulated party is within the EPA’s jurisdiction. 

Unfortunately this isn’t the first time DOJ has made such an extreme case in defense of the Obama administration’s positions. Apart from Hosanna-Tabor and the City of St. Paul kerfuffle, in Citizens United, Malcolm Stewart, the same DOJ lawyer in the Sackett case, claimed that the national government has the authority to ban books published by corporations if they contain political advocacy. After enough sound rejections by the Supreme Court, hopefully Eric Holder will correct the extreme direction these positions are taking the department. 



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