The Judicial Branch Struck Back Against Obama's Overreach, But Because Justice Scalia's Death Invalidates His Opinions in Pending Cases, Everything is Now Tipped in Obama's Favor
Supreme Court Justice Antonin Scalia poses with his family in his chambers before court ceremonies on Sept. 26, 1986, in Washington. Pictured are, front row, from left: Margaret Jane; Justice Scalia, Christopher and Mary. In the back are, from left: Maureen Scalia, Ann Forrest, Catherine, Matthew, Eugene, John and Paul. (Bob Daugherty/Associated Press)
Justice Antonin Scalia’s son spoke of his father's influence on his family at his funeral Feb. 20. Rev. Paul Scalia said "God blessed dad with a love for his family." Click here for video.
The legislative and judicial branches strike back against Obama’s overreach
“For every action, there is an equal and opposite reaction.” - Newton’s Third Law of Motion
By
Notice the Newtonian physics of America’s
Madisonian system. Barack Obama’s Wilsonian hostility to the separation
of powers, expressed in his executive authoritarianism, is provoking
equal and opposite reactions from the judicial and legislative branches.
The Supreme Court has inflicted on Obama a defeat accurately described as the court’s most severe rebuke of a president since it rejected Harry Truman’s claim that inherent presidential powers legitimated his seizure of the steel industry during the Korean War. The court has blocked Obama’s Clean Power Plan, which rests on the rickety premise that the Clean Air Act somehow, in a way unsuspected for four decades, empowers the Environmental Protection Agency to annihilate the right of states to regulate power generation.
It is unprecedented for the Supreme Court to stop a regulatory regime before a lower court has ruled on its merits. This is condign punishment for the EPA’s arrogance last year after the court held that it had no authority for a rule regulating fossil fuel-fired power plants in Michigan. The EPA snidely responded with a gloating statement that the court’s decision came too late to prevent it from imposing almost $10 billion in costs under the illegal rule.
The legislative branch, too, is retaliating against executive overreach. Consider the lethal letter Sen. James Lankford (R-Okla.) sent to the Education Department concerning its Office for Civil Rights.
OCR has sent its own letters to, among other targets, colleges and universities, concerning, among other topics, sexual harassment and violence. These letters, Lankford notes in his, although purporting to offer mere “guidance,” clearly are intended to intimidate schools with the implied threat of “inquiry, investigation, adverse finding, or rescission of federal funding.” Furthermore, Lankford says, they fail to identify “precise governing statutory or regulatory language” that empowers OCR to micromanage institutions’ disciplinary practices.
OCR is insisting on practices discordant with constitutional values. These practices include denying people accused of sexual assault the right to confront their accusers, and subjecting the accused to convictions based on a mere “preponderance of evidence” rather than “clear and convincing” evidence.
In an October 2014 letter to the Boston Globe, 28 Harvard Law School faculty members voiced “strong objections” to OCR’s diktats: “As teachers responsible for educating our students about due process of law, the substantive law governing discrimination and violence, appropriate administrative decision-making, and the rule of law generally, we find the new sexual harassment policy inconsistent with many of the most basic principles we teach.”
Accusing Harvard of “jettisoning balance and fairness in the rush to appease certain federal administration officials,” the professors said: “Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.” They cited “the absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.” And: “The failure to ensure adequate representation for the accused.” And: “The lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that the office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial.”
Sixteen University of Pennsylvania law professors have expressed similar concerns. As have two members of the U.S. Commission on Civil Rights, who note “a disturbing pattern of disregard for the rule of law at OCR,” including: defining “perfectly legal conduct as unlawful” (e.g., “telling sexual or dirty jokes” and displaying “sexually explicit drawings”) and squandering resources “to address violations it has made up out of thin air.”
On Wednesday, OCR, oblivious or indifferent to such learned reproaches, replied to Lankford, saying: Its “guidance” letters do not have the force of law — a distinction without a difference because the letters construe statutes and regulations that have such force. And: The “preponderance of evidence” evidentiary standard is proper because many schools already are using it.
Furthermore, OCR says it must initiate proceedings against an institution “in front of a neutral independent department hearing officer.” So, the department monitors itself neutrally and independently. Lankford will soon use congressional hearings to acquaint OCR with how unpersuaded he is.
OCR and the EPA, representative tentacles of this lawless administration, are inadvertently serving constitutional values by arousing the resistance of rival branches. Madison’s Newtonian system can still stymie Wilson.
George F. Will writes a twice-weekly column on politics and domestic and foreign affairs. He began his column with The Post in 1974, and he received the Pulitzer Prize for Commentary in 1977. He is also a contributor to FOX News’ daytime and primetime programming. Read more from George F. Will’s archive or follow him on Facebook.
How Scalia’s Death Could Be a Pivotal Factor on Environmental and Climate Issues
February 19, 2016EcoWatch - Justice Antonin Scalia left an indelible mark on American law. His prodigious intellect, distinctive style and sharp wit will be sorely missed by his family, friends and colleagues.
His passing also creates a once-in-a-lifetime opportunity to shift the balance of power on the Supreme Court toward greater protection for the environment and greater access to the courts by those most affected by pollution and resource degradation.
A look at Scalia’s legacy reveals why his absence in the coming months could be a pivotal factor on environmental issues.
With few exceptions, such as his opinion in Whitman vs. American Trucking upholding the Environmental Protection Agency’s (EPA) authority to set health-based air quality standards without regard to cost and his opinion in City of Chicago v. Environmental Defense Fund rejecting industry arguments that coal ash isn’t a hazardous waste, Justice Scalia’s environmental legacy is decidedly negative.
Interpreting “Standing” and “Harm”
He consistently voted in favor of property rights over protection of endangered species, wetlands and other natural resources. He dissented in the court’s landmark ruling in Massachusetts vs. EPA that the Clean Air Act authorizes the agency to regulate the carbon pollution causing global warming and ocean acidification.
He wrote the majority opinion in a case limiting EPA’s authority to require pre-construction permits for new power plants that only emit greenhouse gases. He wrote the opinion overturning the mercury rule on a technicality—namely, that EPA should have considered cost as a threshold matter before even embarking on the rule-making instead of at the stage when the regulations were actually being applied to specific facilities.
He argued that the Clean Water Act should be narrowly construed to apply only to “relatively permanent bodies of water” rather than, as the lower courts had consistently ruled for more than 30 years, to the entire tributary systems of the nation’s major waterways.
And he is the author of several decisions severely limiting the ability of environmental plaintiffs to challenge unlawful government actions. This includes Lujan vs. Defenders of Wildlife, which the late Justice Blackmun in his dissent characterized as a “slash and burn expedition through the law of environmental standing.”
To establish standing, a plaintiff must show how it is injured by the action being challenged. Scalia applied a more liberal test of injury for industry plaintiffs than for environmental plaintiffs. Standing was presumed whenever industry alleged that a government action might cause undue economic harm but not when an environmental organization alleged that the same action would cause undue environmental harm.
Whither the Clean Power Plan?
Though President Obama has said he intends to nominate a successor “in due course,” Senate Republicans have vowed to stall the confirmation process in the hope that they will win the White House and have the opportunity to nominate someone more to their liking.
Suddenly the Supreme Court has become a huge prize in the 2016 elections and, given the stakes involved, it is likely that the vacancy will remain well into 2017 and the court will be forced to make a number of difficult decisions with an evenly divided bench.
A split court has important implications in a number of key environmental cases.
Top of the list is the president’s Clean Power Plan (CPP), a rule that requires states to develop plans to lower carbon dioxide emissions from power plants. Only days before Scalia’s death, the court in a 5-4 party line vote blocked the rule’s implementation pending a decision by the DC Circuit, which has scheduled oral argument for June 2. The stay order provides that it will remain in effect until the Supreme Court either denies review (unlikely) or issues a final decision.
Most observers believe the government, arguing that the Clean Power Plan is legal, drew a favorable panel on the DC Circuit court, which includes Judge Sri Srinivasan, who is rumored to be on Obama’s short list of nominees.
Assuming Srinivasan remains on the panel and further assuming the panel issues a decision this year upholding the CPP (not a forgone conclusion), there is a good chance the vacancy on the Supreme Court will not be filled by the time the case arrives there in 2017. This increases the odds of a 4-4 split, which would result in the DC Circuit decision being upheld and the CPP dodging a bullet.
Clean Waters Act at Court
Another case that may be affected by Scalia’s departure but with far less at stake is Hawkes v. Corps of Engineers.
The question presented is whether landowners can go to court immediately when the regulators make what is called a “jurisdictional determination” under the Clean Water Act finding—for example, that there are wetlands on the property that may require a permit to fill.
There is a clear conflict in the circuits on this question. The Eighth Circuit in Hawkes held that jurisdictional determinations were reviewable in court, whereas the Fifth Circuit in Belle Co v. Corps of Engineers ruled that they are not.
Interestingly enough, the disagreement rests on how to read Justice Scalia’s opinion in Sackett v. EPA. In that case, a compliance order under the Clean Water Act required restoration of an allegedly illegally filled wetland and exposed the recipient to potential penalties of US$75,000 per day. Scalia ruled that the compliance order in this case is “final agency action” for which there is no adequate remedy in a court other than judicial review under the Administrative Procedure Act.
Another case being closely watched is the challenge to EPA’s Clean Water Rule that seeks to “clarify” the jurisdictional scope of the Clean Water Act and whether it covers tributaries that feed into waters protected by the act.
The need for clarification stems in large part from the Supreme Court’s decision in Rapanos v. U.S., where the court split 4-1-4 and Justice Scalia authored a plurality opinion that would significantly reduce the scope of the act.
Justice Kennedy wrote a concurring opinion rejecting Scalia’s approach and establishing the so-called “significance nexus” test—requiring the government to prove that a wetland, alone or in combination with other wetlands in the watershed, plays an important role in protecting the quality of the water downstream and therefore is subject to the Clean Water Act. Because Kennedy’s significant test has been adopted by nine circuit courts as the controlling opinion from Rapanos, EPA used it as the basis for the Clean Water Rule.
The Sixth Circuit has stayed the rule pending its decision on whether it has exclusive authority to decide its legality. If the Sixth Circuit asserts jurisdiction, a final decision could be issued this year and the court would then be faced with another petition for review, knowing that it could result in yet another divided decision.
Finally there is a case involving the cleanup of Chesapeake Bay which is heavily polluted by agricultural runoff and other sources. The Third Circuit upheld EPA’s landmark cleanup plan in a case brought by the American Farm Bureau and joined by over two dozen states.
The issue presented is whether EPA exceeded it authority by developing a complex “pollution budget” and allocating responsibility for reducing the inputs of nitrogen and phosphorous throughout the eight states that comprise the basin. The conference on whether to grant review will be considered at the next conference which is scheduled for Feb. 26. This will be the first test to see whether the post-Scalia court has the appetite to take up a case where there could be a 4-4 split.
With these and other environmental issues on the docket, the absence of Scalia will have a huge impact—as will the question of his eventual successor.
Scalia Blasts Obamacare Ruling: ‘Words Have No Meaning’
They did it again.The Supreme Court of the United States effectively rewrote the text of Obamacare to save the legislation.
By a 6-3 majority, the Court upheld the Fourth Circuit’s decision in King v. Burwell and decided that federal subsidies were available on state Obamacare exchanges, even though the text of the so-called Affordable Care Act said that such subsidies were only available on “State” exchanges.
The majority acknowledged that the word “State” was, at best, “ambiguous.” And it rejected the idea that an executive agency, in this case the Internal Revenue Service, could decide the meaning of that term.
Rewriting the law is evidently meant for the courts, not the administration–or Congress.
The majority–led, again, by Chief Justice John Roberts, who infamously interpreted a “penalty” as a tax to uphold Obamacare’s constitutionality in 2012–held that the “context” of the word “State” mattered more than the “most natural reading.”
And the context was that Obamacare had to be saved from itself. After all, Congress could not have meant to pass a bad, self-defeating policy, could it?
The dissent, by Justice Antonin Scalia, was blistering.
“Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State,'” he wrote.If a law was badly formulated, that was not the Court’s problem, he argued. It was up to Congress to rescue the subsidies for Obamacare, not the Justices. And if people did not like it, tough: that was why the Justices were meant to serve life terms. They were meant to be above politics.
“Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”
Instead, Scalia noted, the Court had adopted a particular political bent.
He concluded:
We should start calling this law SCOTUScare.
Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years….And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
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