Two recent U.S. Supreme Court decisions are victories for anyone dealing with government administrative agencies, say lawyers interested in the cases. One constitutional scholar warns that the decisions are only the first steps in the fight to maintain our form of democracy.
“Administrative power is the greatest threat to our constitutional rights,” Phillip Hamburger, a Columbia University School of Law law professor and CEO of the New Civil Liberties Alliance (NCLA), told The Epoch Times.
Mr. Hamburger is the author of “Is Administrative Law Unlawful?” a treatise on the dangers of administrative law.
Lawyers interviewed by The Epoch Times believe that the June 30, 2021, West Virginia v. EPA (Environmental Protection Agency), and May 25, 2023, Sackett v. EPA decisions by the U.S. Supreme Court send a message to government agencies.
“The law isn’t meant for technocrats; it’s not a trick,” said David McDonald, senior attorney with the Mountain States Legal Foundation (MSLF).
Mr. Hamburger and the lawyers say the federal government’s so-called “three letter agencies”—regulatory agencies that have the power to promulgate rules that have the force of law—use vague language with broad, non-specific terms to maintain control over citizens and advance political agendas.
The EPA has long been a target of this criticism, and in the past few years, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has come under fire for alleged arbitrary rule-making.
The EPA has yet to respond to emailed questions from The Epoch Times for this story. But it did release a statement after the Sackett decision. The agency wrote that it will issue a new rule that complies with the Supreme Court’s latest order by Sept. 1, 2023.
“The (EPA and U.S. Army Corps of Engineers) are developing a rule to amend the final “Revised Definition of ‘Waters of the United States’” rule, published in the Federal Register on January 18, 2023, consistent with the U.S. Supreme Court’s May 25, 2023 decision,” the statement reads.
Michael and Chantell Sackett’s victory in their fight against the EPA over alleged violations of the Clean Water Act (CWA) resulted from two Supreme Court battles and came 16 years after the EPA first contacted them. The Sacketts were denied use of their property during that time and are so tired of the fight that they don’t want to talk about it.
“The Sacketts are not granting interviews at this time,” said Kate Pomeroy, media director for the Sacramento-based Pacific Legal Foundation (PLF), representing the couple.
If they had not been represented by a public-interest law firm specializing in such cases, they likely would have done what many in their position have done in the past.
“For every Chantell and Mike, there are dozens of people who just give up,” Mr. McDonald said. The MSLF filed an amicus brief with the high court in support of the Sacketts.
The Sacketts’ May 25 win was their second Supreme Court victory in the case. They first had to win the right to go to court.
In 2007, the Sacketts started backfilling and leveling their two-thirds acre lot near Priest Lake in Bonner County, Idaho.
The Sacketts’ lot is between Kalispell Bay Road to the north, which is paved, and Old Schneider Road, which is graveled, to the south. Across Kalispell Bay Road is land the government has declared a wetland. That property has a ditch that connects to a stream that empties into the lake.
The EPA stopped the project in 2008, claiming the backfilling constituted dumping waste into Priest Lake. The government threatened the couple with $40,000 in fines for each day their property was not restored.
The Sacketts were flummoxed, said PLF attorney Damien Schiff.
Their lot has no ditches, ponds, or streams. During the purchase and permitting processes, they were never told the CWA might be an issue,
They requested an EPA administrative hearing. When that was denied in 2008, they sued in the Ninth Circuit Court and lost.
According to Mr. Schiff, the Ninth Circuit didn’t address the specifics of their case. Instead, it gave the Sacketts their first lesson in administrative law. The court ruled that the Sacketts had to complete the EPA’s administrative process before taking their case before a judge.
“The Ninth Circuit affirmed the EPA’s authority,” Mr. Schiff said.
In effect, the court ruled that they had to appeal their case to the agency that had already decided they were guilty before they could go before a judge.
“The EPA was essentially saying, ‘You’re going to be guilty if we say you’re guilty. You can fight it, but you’re probably going to lose,’” Mr. McDonald said.
So, the Sacketts made their first trip to the Supreme Court, where the justices ruled that “(The EPA’s rules) would violate due process,” Mr. Schiff said.
Navigable Waters and The Commerce Clause
The EPA was officially established on Dec. 4, 1970, and the CWA became law in 1972.Under the CWA, the EPA and the U.S. Army Corps of Engineers regulate “navigable waters,” defined as “waters of the United States.” Under the U.S. Constitution’s commerce clause, navigable waters have been understood as waters that can be used for interstate commerce.
“This Court has used ‘waters of the United States’ to refer to similar bodies of water, almost always about ships,” the May 25 Supreme Court’s Sackett decision reads.
Rob Natelson is a constitutional scholar and senior fellow at the Independence Institute in Denver, Colorado, and contributor to The Epoch Times.
Who Regulates the Lake?
“Congress could regulate the sale of shoes by a North Carolina wholesaler to a New York retailer. But only the New York state government could oversee a New York retailer’s sale to a New York buyer,” Mr. Natelson wrote.To the average person, it would appear that Priest Lake is outside the EPA’s jurisdiction. It is contained entirely within Idaho and has no navigable waters connecting to it. But, where something isn’t explicitly stated, the lawyers say interpretation and definition become key.
Mr. Natelson claims the foundation for the modern administrative state was set by U.S. Supreme Court Justices appointed by President Franklin D. Roosevelt.
According to Mr. Natelson, 1930s progressive Supreme Court justices “rewrote the Constitution.”
They recognized, as the founders did, that business activity impacted many aspects of society. If a business succeeds, the owner may buy land, marry, or make other decisions affecting his community. So, the founders wrote the necessary and proper clause allowing some regulation based on this interdependence.
Mr. Natelson wrote that the chief aim of the clause was to limit federal power and vest that power in the states.
“When writing the Constitution, they split responsibility between the states and the central government. They did so because other values (such as freedom) are more important than central coordination,” Mr. Natelson wrote.
The progressives reinterpreted this concept to expand the scope of the federal government’s authority rather than limit it, according to Mr. Natelson. Now, when the government or the courts don’t clearly define something, the federal agencies do it for them.
The effect was to expand the government’s authority to regulate anything if it could show some tie, even a tenuous one, to commerce. Mr. McDonald invoked a military term to describe this.
Vague Language, Broad Definitions
Reading Supreme Court decisions before the Sackett case makes one sense that the government was looking for any hook to hang its hat on. The EPA rules and the CWA defined wetlands as “adjacent” to “waters of the United States” but didn’t define what that meant.In the 1985 case, Rapanos v. United States, the EPA claimed that any water used by migratory birds fell under its jurisdiction because the birds crossed state lines. EPA made a similar claim in Sackett that Priest Lake impacted interstate commerce because out-of-state tourists swam in the lake.
The Supreme Court rejected that idea saying that the federal government couldn’t assert jurisdiction over bodies of water like lakes and ponds that were fully contained within a state.
In Rapanos, a split court gave two definitions of “waters of the United States.” Then Justice Antonin Scalia provided an ordinary public meaning that said the wetland must have a physical connection with the navigable waters.
However, then Justice Anthony Kennedy wrote an opinion that set a “significant nexus” standard. This meant that if a connection could be established between the land and navigable water—such as a drainage ditch connecting to a stream that connected to the lake—that made the land a wetland and one of the “waters of the United States.”
“Within a few years (of the Rapanos decision) the agencies had interpreted their jurisdiction ‘over the waters of the United States’ to cover 270-to-300 million acres of wetlands and ‘virtually any parcel of land containing a channel or conduit . . . through which rainwater or drainage may occasionally or intermittently may flow,” the Sackett decision reads.
In one egregious example of the significant nexus test, the Sackett decision references United States v. Deaton from 2000. In that case, the EPA charged a property owner with violating the CWA by piling dirt on a property 32 miles from a navigable waterway.
Under this type of legal reasoning, the Sacketts were deprived of using their property for 16 years. They had the bad luck of buying land across the road from a ditch they didn’t know connected to a lake that was separated from their property by another road and a row of existing homes that, apparently from the EPA’s perspective, didn’t impact the lake.
In the Sackett decision, the court rejected the significant nexus test. The majority opinion, written by Justice Samuel Alito, goes back to Scalia’s concurrent opinion in Rapanos, stating that the wetland must share a “continuous surface connection” with the navigable waters.
“To be regulated, there has to be a relatively permanent water. If you’re going to regulate wetlands, those wetlands have to be essentially part of that water,” Mr. Schiff said, explaining the decision.
Mr. McDonald said more than private property rights or environmental law is at stake. He said the Sackett decision clarifies that the law is not enforceable if people don’t understand it. It makes clear to unelected agencies that their rules must be clear.
“It’s a promise from the government to the people that I will know what’s expected of me,” he said. Attorneys who regularly deal with administrative agencies say the Sackett decision is a message that other federal agencies should heed.
“The agencies should be focusing on the right things,” Brian Abbas, director of the MSLF Center to Keep and Bear Arms, told The Epoch Times.
Mr. Abbas said the ATF operates on the same philosophy as the EPA, that it can issue rules and change them without input from Congress or the courts. Over the past couple of years, the ATF has been in the news accused of infringing on Americans’ Second Amendment rights through arbitrary rulemaking.
Mr. Abbas said MSLF joined several other legal groups in suing the ATF over its attempt to control so-called “80 percent frames.”
These are parts kits that individuals buy to build their guns. The ATF recently issued a rule defining the kits as frames or receivers, regulated as firearms. According to Mr. Abbas, for decades, the kits have been legal because it was recognized that they lacked the parts to make them operable receivers. All that has changed is the ATF’s definition.
The ATF has reportedly gone so far as to write a rule about when a metal block becomes an illegal receiver, Mr. Abbas said.
“For 50 years, we had a definition for what a frame or receiver was. Everybody knew,” Mr. Abbas said. “It’s really amazing to see the legal maneuvering to get what they want the definitions to say.”
William Kirk is a Washington-based attorney specializing in Second Amendment law and hosts a YouTube channel. He said the Supreme Court’s June 2022 decision in West Virginia v. EPA is a milestone case that will impact the administrative state.
Mr. Kirk said that the EPA attempted to regulate the coal industry out of business in that case. The Supreme Court invoked the “major questions” doctrine in ruling against the government. The principle limits federal agency regulatory authority when rules have significant economic or political consequences.
The justices decided the proposed coal industry regulations would have such an impact on West Virginia’s people and economy that it should be subject to legislative oversight.
“You’re beginning to see the boxing in of this out-of-control administrative system,” Mr. Kirk told The Epoch Times.
According to Mr. Hamburger, the administrative state is sustained by politicians and bureaucrats who don’t trust the electorate.
He said it is the continuation of the “royal prerogative.” It is government by experts and authorities, which the Constitution was meant to prevent. But when a politician must make a difficult decision, deferring to an expert may be a temptation difficult to resist. According to Mr. Hamburger, the administrative process is explicitly designed to bypass the Constitution.
‘Remarkably Efficient’
“It’s a remarkably efficient way,” Mr. Hamburger said.Mr. Kirk said it might be efficient, but over time the agencies may accomplish little more than angering the public and enshrining ideas the officials wanted to kill. He pointed to two recent rules by the ATF.
First is the 2018 bump stock ban. Bump stocks enable rapid fire on some types of semiautomatic rifles.
After the device was used in a 2017 mass shooting in Las Vegas, President Donald Trump ordered the ATF to ban them as machine guns, even though it had previously declared they were not machine guns under the 1968 Gun Control Act.
Several courts have struck down the ban. Mainly because it was arbitrarily instituted by presidential order, which is unconstitutional, Mr. Kirk said.
The ATF is facing similar challenges over its rule on pistol stabilizing braces.
The pistol-stabilizing brace was invented in 2012 to assist the disabled and others who may need help shooting large-format pistols built on the AR-15 and similar platforms. The brace attaches to the rear of the pistol and the shooter’s forearm.
The ATF had issued several open letters stating the braces did not change pistols into short-barreled rifles (SBR). However, the final 300-page rule published in January 2023 said that changes in the braces’ design and videos on how to use them make clear that the items convert the large format pistols into prohibited SBRs.
According to Mr. Kirk, the ATF made millions of previously law-abiding citizens felons with the stroke of a pen. Social media has been flooded with criticism of the ATF. Many social media influencers are warning that the agency is preparing to go door-to-door searching for prohibited items. Videos purportedly showing ATF agents making unannounced visits to people’s homes can be found online, stoking fear that the federal government is prepared to clamp down on individual rights.
Mr. Kirk said the ATF, and other agencies, would do better to push Congress for the laws they want. At least then, they would have a better chance of being upheld by the courts.
“What the courts are saying is, ‘If you want to ban them, do it the way the Constitution told you to,’” Mr. Kirk said.
The experts say people must stand against the administrative state. It’s good that property owners, gun enthusiasts, and constitutional scholars are fighting for their individual rights. However, to be truly successful, Mr. Hamburger said they must stand for Americans’ constitutional rights.
“If you fight for everybody against the common threat, we can win,” he said. “One has to view the administrative state as a threat to civil liberties.”
