The Volokh Conspiracy

New polling shows a majority of Americans, and even a majority of self-described liberal Democrats, support drone strikes against suspected terrorists and keeping the Guantanamo Bay detention facility open.  The Advocacy Center for Equality and Democracy comments:

the polling data suggests that a significant number of people who identify as belonging to a political party (a) change their values to conform to the policies of their party, and/or (b) change their values to oppose the leader of the other party. Either is totally inconsistent with a citizen’s role in a democracy.

More here and here.  This is further confirmation of Kerr’s Law (as is much of the opposition to the individual mandate from those who used to support it).

Last week, I was a participant in the 2012 Fordham Debate at the University of Utah’s S.J. Quinney College of Law.  The topic was the constitutionality of the minimum coverage requirement (aka the individual mandate) of the Patient Protection and Affordable Care Act, and my interlocutor was David Orentlicher of Indiana University.  For those interested, here is the video of the debate.    Time permitting, I’ll write up a synopsis of my remarks as well.

On CNN and in Nature, the case for regulating sugar like alcohol and tobacco.  What’s next, caffeine?  How would law professors get anything done? (Oh snap.)

This week the premier legal ethics blog, Legal Ethics Forum, is hosting a symposium on “Legal Education’s Response to the Economic Realities Facing the Profession.” In this symposium, “scholars on the legal profession from the United States and around the world will post contributions about the implications of economic pressures on the way we teach our students.” They have what looks like a fantastic line-up (including my colleague Cassandra Burke Robertson), so this will be a must read for those interested in how legal education and the legal profession are responding to broader economic changes.

And don’t forget the commercials!

UPDATE: And speaking of commercials, some have already sparked controversy. Ford is unhappy about GM’s 2012 Mayan Doomsday ad. Also, an ad GOP Senate candidate Pete Hoekstra is running during the Super Bowl on Michigan stations has also sparked controversy.

Indiana Secretary of State Charles White was convicted of voter fraud, among other charges, this week for lying about this address on voter registration forms and voting in the wrong precinct. White apparently continued to use his ex-wife’s address for his voter registration after they split, in part, because he didn’t want to lose a modest town council salary for moving out of the district. As Secretary of State, White was the highest ranking elections official in the state.

There’s much speculation and debate over whether non-citizens and others who are ineligible vote in U.S. elections, but relatively few documented instances.    That makes this report by a local television station in Fort Myers, Florida all the more significant.  The station’s investigation uncovered nearly one hundred non-citizens who were registered to vote, and several admitted to have cast ballots.  The non-citizen voters were discovered because they said to be excused from jury service due to their lack of citizenship.  The question now is whether this report is symptomatic of a larger problem in Florida, if not elsewhere, or a relatively isolated problem.

UPDATE: As noted in the comments below, the station supplemented the report with the following comment on its story:

People seem very interested in which party these ineligible voters were for, so let’s look at the numbers we have. We found 87 people who said they couldn’t serve on a jury but were registered to vote. Of those:
33 were registered as Democrats (3 inactive).
25 were registered as Republicans (1 inactive).
1 was a registered Independent.
20 were No Party Affiliation (1 inactive).
8 were unknown.
It’s a small sampling, so trying to extrapolate these numbers probably wouldn’t give you any reliable statewide percentage breakdown. But that’s what the data show.

This is the conclusion of the U.S. Court of Appeals for the Sixth Circuit in an interesting case, United States v. Carroll, in which the United States sought to invoke its sovereign immunity in a suit in which it is the plaintiff.  To make matters more interesting, the U.S. was suing the bankruptcy trustees of the Eastern District of Michigan in their official capacities.  And were that not enough, the Sixth Circuit dismisses the case because the federal government lacks Article III standing to bring its claims against these parties.  I think I spy a Federal Courts exam question in here somewhere.

Actually, it’s not quite that simple, but close. David Kernell hacked then-Governor Sarah Palin’s Yahoo e-mail account, and was subsequently convicted under 18 U.S.C. § 1519, a provision of the Sarbanes-Oxley Act of 2002, for deleting information on his computer in order to impede the investigation into his accessing of Gov. Palin’s account. Today, the U.S. Court of Appeals for the Sixth Circuit affirmed Kernell’s conviction, rejecting his claim that Section 1519 is unconstitutionally vague.

The editorial board of the New York Times has finally decided to abandon its support of filibustering nominees it opposes.

It is time to end the ability of a single senator, or group of senators, to block the confirmation process by threatening a filibuster, which can be overcome only by the vote of 60 senators. We agree with President Obama’s call in the State of the Union address for the Senate to change its rules and require votes on judicial and executive nominees within 90 days.

This is a major change of position for us, and we came to it reluctantly. The filibuster has sometimes been the only way to deny life terms on the federal bench to extremist or unqualified judges. But the paralysis has become so dire that we see no other solution.

Like the Independent Counsel law, the filibuster of judicial nominees seemed like a much better idea when it was focused on one’s political opponents — and the NYT enthusiastically supported the filibuster of qualified Republican nominees it deemed too conservative. Now that it has been used to block qualified liberal nominees, the NYT now recognizes the resulting tit-for-tat leaves no one better off. Perhaps members of the Senate will concur.

Many Republican Senators are on record supporting elimination of the filibuster for judicial nominations, but they will not agree to unilateral disarmament. So long as it is on the table it will be used.  If the filibuster of judicial nominees is to end, both parties must agree to end it. Those Democrats who complain the loudest about GOP nominees were among those who eagerly used the filibuster against President Bush, even after the “Gang of 14″ deal.  Their willingness to consider the filibuster’s end will be necessary to secure a truce.

Now that it has been shown the filibuster can be used against nominees of both parties, perhaps some Senate Democrats will now agree to support a bi-partisan deal to ensure all judicial nominees receive a prompt up-or-down vote within a set time after their nomination. Senator Leahy supported legislation along these lines back when Bill Clinton was President, only to abandon the idea once George W. Bush was in office. Republicans toyed with the idea as well, but are loathe to offer such a gift to a sitting Democratic President.   Perhaps both could agree to forego filibusters for whomever occupies 1600 Pennsylvania Avenue next.

It is said little gets done in an election year, particularly when it comes to nominations. But the fact that it is an election year provides a rare window of opportunity. It is still early enough that neither party knows who will win the Presidency this fall, or even who will hold a Senate majority. This allows each side to put aside consideration of partisan advantage and embrace a neutral set of rules to govern future nominations to take effect in January 2013. Such a deal could ensure prompt committee and floor votes of nominees within a set number of days after they are referred to the Senate and their paperwork in complete. Unacceptable nominees could still be opposed, but they would have to be opposed on the merits, and so long as the White House makes nominations with dispatch, there would be no concern about excess judicial vacancies.

The window for a deal along the lines above will not stay open long, as neither side will sign on to something they believe will advantage the other side. The question is whether enough members of the Senate care enough about the judiciary to make it happen.  If not, any deal like this will have to wait another three or four years.

The Kaiser Family Foundation’s latest poll (toplines here) finds that two-thirds of Americans oppose the individual mandate and a clear majority — 54 percent — want the Supreme Court to invalidate the provision.  Based on the poll of 1,206 adults, only 17 percent of Americans would like to see the individual mandate upheld.

Another interesting finding from the survey is that a majority of Americans also believe that the Supreme Court will strike down the mandate.  In other words, according to this poll, a majority of Americans will be surprised and disappointed if the individual mandate is upheld.

(LvWSJ)

For those interested, I’ll be giving a variety of talks in the coming weeks, including the following:

• I’ll be speaking to the University of Michigan Law School Federalist Society chapter on ”The Individual Mandate Litigation and the Future of Federalism,” Jan. 25 at 12:00pm, 120 Hutchins Hall.
• I’ll be debating the constitutionality of the individual mandate with David Orentlicher of Indiana at the University of Utah S.J. Quinney College of Law’s  28th Annual Jefferson P. Fordham Debate, Feb. 6 as 12:15pm.
• I’ll be debating Professor Neil Wise on EPA regulation of greenhouse gases under the Clean Air Act to the Rutgers-Camden chapter of the Federalist Society, Feb. 8.
• I’ll be discussing EPA regulation under the Clean Air Act with Stephanie Tai before the Madison, Wisconsin lawyers chapter of the Federalist Society, Feb. 22.

[Post updated]

In 1996, then-Speaker of the House Newt Gingrich introduced the Drug Importer Death Penalty Act which, as the name implies, would have imposed the death penalty on those who imported a sufficient amount of marijuana or other illegal drugs into the United States on more than one occasion.  (Hat tip: Ezra Klein)

Business groups have already begun to take aim at President Obama’s recess appointments. As SCOTUSBlog reports, a coalition of industry groups filed a motion (and supplementary memorandum) to include a challenge to the constitutionality of President Obama’s recess appointments to the National Labor Relations Board in ongoing litigation against recently adopted “notice posting” rule. According to the industry groups, the NLRB lacks the authority to implement and enforce the new rule because it lacks a quorum due to the unconstitutionality of the recent appointments.

All electronic devices must be turned off prior to takeoff. If you fly anywhere, you’ve almost certainly heard this message. This requirement was adopted for passenger safety, right? Perhaps. Some electronic devices, phones in particular, can cause problems with the plane’s equipment. But the rule applies across the board, even to iPads in “airplane mode” and Kindles. Does this make sense? Apparently not, as there is no technical or scientific basis for the ban on Kindles during takeoff. Nick Bilton explains:

I’ve spoken with the F.A.A., American Airlines, Boeing and several others trying to find answers. Each has given me a radically different rationale that contradicts the others. The F.A.A. admits that its reasons have nothing to do with the undivided attention of passengers or the fear of Kindles flying out of passengers’ hands in case there is turbulence. That leaves us with the danger of electrical emissions.

And what are the electrical emissions of a Kindle?

When EMT Labs put an Amazon Kindle through a number of tests, the company consistently found that this e-reader emitted less than 30 microvolts per meter when in use. That’s only 0.00003 of a volt.

“The power coming off a Kindle is completely minuscule and can’t do anything to interfere with a plane,” said Jay Gandhi, chief executive of EMT Labs, after going over the results of the test. “It’s so low that it just isn’t sending out any real interference.”

But one Kindle isn’t sending out a lot of electrical emissions. But surely a plane’s cabin with dozens or even hundreds will? That’s what both the F.A.A. and American Airlines asserted when I asked why pilots in the cockpit could use iPads, but the people back in coach could not. Yet that’s not right either.

It turns out the Kindle puts off about the same amount of electrical emissions as a portable shaver — and under the FAAs rules those are allowed during takeoff. So what explains the Kindle ban? According to one expert quoted by Bilton: “agency inertia and paranoia.”

This morning I received a CNN “Breaking News” alert that “President Obama said today he is elevating the Small Business Administration to a Cabinet-level agency.” My first reaction was utter disbelief. The question is whether the SBA should exist, not whether it should be a cabinet-level agency. Fortunately, the CNN report was in error. What the President is, in fact, proposing is to consolidate multiple business-related agencies, including the SBA, into a single agency. As the White House fact sheet explains:

Currently, there are six major departments and agencies that focus primarily on business and trade in the federal government. The six are: U.S. Department of Commerce’s core business and trade functions, the Small Business Administration, the Office of the U.S. Trade Representative, the Export-Import Bank, the Overseas Private Investment Corporation, and the U.S. Trade and Development Agency.

This is redundant and inefficient. Small businesses often face a maze of agencies when looking for even the most basic answers to the most basic questions. There is a whole host of websites, toll-free numbers and customer service centers that at times offer them differing advice. The result is a system that is not working for our small businesses.

The President is proposing to consolidate those six departments and agencies into one Department with one website, one phone number and one mission – helping American businesses succeed.

This is a good idea. To be sure, I would love to see the President go even farther and consider whether the federal government needs to devote taxpayer dollars to business promotion at all. But if the government is going to be engaged in such efforts, it certainly makes sense to do so in as efficient a way as is possible, eliminating duplicative agencies and functions. This plan may only be a small step in the right direction, but given the orgy of spending over the past several years (including during the Bush Administration), a reorganization plan projected to save $3 billion over ten years is certainly a step in the right direction. Brad Plumer has more here.

This morning, the U.S. Court of Appeals for the D.C. Circuit decided U.S. Department of the Navy v. FLRA, resolving a labor dispute over water.   Judge Kavanaugh’s opinion for the court begins:

This case turns on whether a government agency may provide employees with free bottled water even when safe and drinkable water is available from water fountains at their work sites. Under federal appropriations law, the answer is no.

Apparently the Navy began providing bottled water to workers at a facility in Rhode Island because some water fountains had been manufactured with lead. After the water fountains were replaced, the Navy discontinued providing the bottled water without charge because “providing bottled water when safe and drinkable tap water was available would violate the legal prohibition against use of appropriated funds for employees’ personal expenses.” But the Navy failed to consult with the facility’s civilian employees’ unions before making its decision. In response, the unions filed a grievance, alleging that the provision of bottled water had become a condition of employment at the facility. An arbitrator and the Federal Labor Relations Authority agreed, only to be reversed by the D.C. Circuit on the following grounds:

Decisions of the Supreme Court and this Court have strictly enforced the constitutional requirement, implemented by federal statutes, that uses of appropriated funds be authorized by Congress. See U.S. CONST. art. I, § 9, cl. 7; 31 U.S.C. § 1301 et seq. Funds appropriated for agency operations may be used for “necessary expenses” but not for employees’ “personal expenses.” As the Comptroller General has long determined, when safe and drinkable tap water is available in the workplace, bottled water constitutes a personal expense for which appropriated funds may not be expended. Under federal collective bargaining law, moreover, an agency has no duty or authority to bargain over or grant benefits that are “inconsistent with any Federal law.” 5 U.S.C. § 7117(a)(1). Therefore, if safe and drinkable tap water was available at the Newport facilities, the Navy had no authority or duty to bargain before removing the bottled water.

We therefore vacate the decision of the Federal Labor Relations Authority and remand this case to the Authority to determine whether the tap water is in fact safe to drink. If the Authority concludes that the tap water is safe to drink, the Authority must rule for the Navy.

SCOTUSBlog reports that the Supreme Court has issued its opinion in Hosanna Tabor v EEOC, unanimously reversing the U.S. Court of Appeals for the Sixth Circuit on the question whether the First Amendment precludes employment discrimination suits against religious entities by those in “ministerial” positions.  The Court was unanimous in the judgment.  Chief Justice Roberts wrote the opinion for the Court.  Justice Thomas concurred, and Justice Alito filed a concurring opinion joined by Justice Kagan (!).  I have not yet read the opinion, but I’m certainly curious to see what united Justices Alito and Kagan.  More background on the case can be found here.

Also, FWIW, the Court today also issued another 8-1 opinion in Perry v. New Hampshire.

Yale’s Bruce Ackerman, writing in the WSJ, calls for the White House to release the legal memorandum upon which President Obama based his decision to make several recess appointments while the Senate claimed not to be in recess.  As Ackerman notes, the Justice Department’s Office of Legal Counsel “traditionally served as the executive branch’s authoritative spokesman on matters of high legal importance,” but no longer.  On matters from the constitutionality of proposed legislation to the scope of the President’s authority as commander-in-chief, the White House increasingly looks elsewhere when it wants to ensure it gets a desired legal conclusion.  So, here, the President apparently relied upon the White House counsel — who is appointed unilaterally by the President — rather than OLC, which is headed by a Senate-confirmed Assistant Attorney General.  Comments Ackerman:

In challenging the Senate on recess appointments, President Obama has only relied on his White House Counsel, not the Justice Department, in reaching his constitutional conclusions. But so far, the current counsel, Kathryn Ruemmler, has failed to publish the written opinion she presumably prepared to advise the president on his responsibilities. . . .

This is no small difference in a dispute between the president and the Senate on recess appointments. If Mr. Obama had turned to [OLC head Virginia] Seitz as his principal authority, he would have been relying on somebody the Senate itself certified as a suitable official to resolve hotly contested matters of constitutional law. In turning to Ms. Ruemmler, he is asking one of his own appointees to judge whether the Senate can block the appointment of more unilateral appointees.

Within this context, it is hardly enough for him to inform the Senate that Ms. Ruemmler has given the go-ahead. At the very least, he should provide his counsel’s legal opinion explaining why he has the constitutional authority to second-guess the Senate on whether it is in recess.

So far, Ms. Ruemmler has only provided brief media interviews to explain the administration’s “practical, common-sense approach.” On her view, as she explained to NPR, a Senate’s “holiday session” is “just a gimmick” that prevents the president from governing.

Of note, Ackerman finds Ms. Ruemmler’s “casual remarks” wholly insufficient, even though he agrees with her ultimate conclusion that the President’s recess appointments were constitutional. For Ackerman, the issue here is “whether the president has an obligation to make his own constitutional case, or merely announce his judgment by fiat.”

UPDATE: Jack Goldsmith cautions that we should not assume that OLC was not consulted, though he urges.  As he notes, it is rare for a President to bypass or overrule OLC.  He is correct.  The problem is that the White House won’t say whether the Justice Department was consulted and the current administration bypassed OLC on the constitutionality of DC voting rights legislation and overruled OLC on the nature of the military intervention in Libya.  In the latter case, the White House also refused to say whether OLC had been consulted until that information was leaked and reported by the NYT‘s Charlie Savage.  So until the White House is willing to say whether OLC was in the loop, I think skepticism is warranted.  In any event, the Administration should be willing to offer a more complete justification of its position.  Writes Goldsmith:

I can understand why the administration might not want the OLC opinion itself released, especially if (as is probably the case) the opinion notes the closeness of the issue and acknowledges counterarguments, both of which could be used against DOJ in subsequent litigation. But beyond these concerns, which could be addressed by releasing a suitably summarized legal analysis, arguments based on attorney-client and executive privilege ring hollow in this context. The Obama administration’s supposed commitment to DOJ transparency has applied much more to Bush-era legal work than to Obama-era legal work. That looks bad and it is bad. I believe the President has a prerogative to use all of the constitutional tools at his disposal in fighting against a Congress that he believes is unduly intransigent. But especially in an area like this that is hard for courts to review and that raises no issue of classified information, Congress and the American people should be given an opportunity to judge the validity of the President’s legal arguments.

FURTHER UPDATE:  As John Elwood reports, there is an OLC opinion and it has just been posted on the DOJ website.

Back in 2007, Congress created a biofuels mandate under which oil companies are required to use a minimum amount of cellulosic ethanol each year.  The mandate was supposed to encourage the development of a domestic cellulosic ethanol industry.  This has not happened.  Several years after the mandate was imposed, there is still no commercial cellulosic ethanol production.  This gets the oil companies off the hook, right?  Nope.  As the New York Times reports, companies are still paying fines, totaling nearly $7 million, for failing to meet a blending quota for a substance that does not exist.  Were that not bad enough, this year the cellulosic ethanol quota will increase, as will the fines for failing to meet it.

Who would defend mandating the use of a substance that, for all practical purposes, does not exist?  Not the renewable fuel industry.  As the NYT reports, they acknowledge that commercial production of cellulosic ethanol remains years away.

“From a taxpayer/consumer standpoint, it doesn’t seem to make a lot of sense that we would require blenders to pay fines or fees or whatever for stuff that literally isn’t available,” said Dennis V. McGinn, a retired vice admiral who serves on the American Council on Renewable Energy.

The EPA, on the other hand, defends the mandate:

Cathy Milbourn, an E.P.A. spokeswoman, said that her agency still believed that the 8.65-million-gallon quota for cellulosic ethanol for 2012 was “reasonably attainable.” By setting a quota, she added, “we avoid a situation where real cellulosic biofuel production exceeds the mandated volume,” which would weaken demand.

AEI’s Ken Green has trouble making sense of the EPA’s rationalization:

So what’s most important about biofuel quotas is that they prevent us from over-producing a product that we can’t produce so we don’t weaken demand for the product that the government mandates we use.

As Green notes, Congress might as well have mandated oil companies blend gasoline with rainbows and unicorn sweat.

The Supreme Court issued four opinions in argued cases today.  Interestingly, all four cases were decided 8-1 (though some featured concurrences or separate opinions).  Justice Ginsburg was the lone dissenter in two of the cases (Minneci v. Pollard and Compu-Credit Corp. v. Greenwood).  In the other two cases the lone dissenters were Justice Scalia (Gonzales v. Thaler) and Justice Thomas (Smith v. Cain).  SCOTUSBlog has more details on the opinions here.

Today’s WSJ features an op-ed by former federal judge Michael McConnell on President Obama’s decision to grant recess appointments to Richard Cordray to head the Consumer Financial Protection Board and three members of the National Labor Relations Board.

It is hard to imagine a plausible constitutional basis for the appointments. The president has power to make recess appointments only when the Senate is in recess. Several years ago—under the leadership of Harry Reid and with the vote of then-Sen. Obama—the Senate adopted a practice of holding pro forma sessions every three days during its holidays with the expressed purpose of preventing President George W. Bush from making recess appointments during intrasession adjournments. This administration must think the rules made to hamstring President Bush do not apply to President Obama. But an essential bedrock of any functioning democratic republic is that the same rules apply regardless of who holds office.

It does not matter, constitutionally, that congressional Republicans have abused their authority by refusing to confirm qualified nominees—just as congressional Democrats did in the previous administration. Governance in a divided system is by nature frustrating. But the president cannot use unconstitutional means to combat political shenanigans. If the filibuster is a problem, the Senate majority has power to eliminate or weaken it, by an amendment to Senate Rule 22. They just need to be aware that the same rules will apply to them if and when they return to minority status and wish to use the filibuster to obstruct Republican appointments and policies.

McConnell notes that Harvard’s Laurence Tribe, who is now defending the recess appointments, “dismissed as ‘absurd’ any suggestion that a period of ‘a fortnight, or a weekend, or overnight’ is a ‘recess’ for purposes of the Recess Appointments Clause.” He also observes that the Administration “has offered no considered legal defense for the recess appointments,” suggesting there was no Office of Legal Counsel memo supporting its claim. Writing in the LA Times, Bruce Ackerman likewise expressed doubts that the Justice Department’s OLC backed the decision:

Normally, presidents rely on the Justice Department to present their case on matters of high constitutional importance. But Obama has refused to take this course, probably because traditionalists in the department refused to endorse his collision course with the Senate. Instead, he used his White House counsel, Kathryn Ruemmler, to serve as his legal mouthpiece.

As Ackerman observed, the Administration adopted the same approach when declaring the military intervention in Libya was not a military conflict. The Administration also circumvented OLC when it decided to back the constitutionality of legislation granting voting rights to the District of Columbia.

Back on the subject of the constitutionality of recess appointments, at the Originalism blog, Michael Rappaport offers a post, “Recess Appointments: The Original Meaning and Its Decline.”

Over at RegBlog (an indispensable resource for those interested in regulatory policy), Lewis & Clark Law Professor William Funk comments on the stakes in the Sackett case:

Many environmentalists fear that a decision by the Court in favor of the Sacketts would hamstring environmental enforcement, on the theory that if defendants may delay compliance during lengthy judicial review proceedings, substantial harm to the environment may occur even if EPA eventually prevails. Moreover, if obtaining judicial review would delay compliance, then defendants might be induced to seek judicial review simply to put off the cost of compliance, even if the defendants knew they were likely to lose in the end. However, this fear is unfounded. The Administrative Procedure Act is clear that obtaining judicial review of a compliance order does not by itself relieve a person from the requirement to comply with that order pending judicial review. Instead, that Act provides that a person may seek a stay of the order first from the agency and then from the court if the agency denies the request, but that request will be judged on its own merits. For example, with respect to the Sacketts, it is unlikely a court would stay EPA’s order to cease and desist from further damage to the alleged wetlands, but it might well stay the requirement that the Sacketts restore the wetlands until a determination of the validity of EPA’s order. Thus, the judicial review the Sacketts seek would not enable continued harm to the environment during the review proceedings.

One need not view EPA as a rogue agency – or even as Dirty Harry – to appreciate the need for providing a judicial check on agency action. Even in good faith EPA has made errors in the past, and it and will again in the future; after all, it is staffed by humans. Knowing that persons may be able to seek judicial review, rather than be coerced into compliance out of fear of large penalties, provides a healthy incentive for EPA officials to ensure that their decisions are based on sound facts and law that will be readily upheld in courts. Absent that incentive, the tendency noted by Lord Acton – that power tends to corrupt and absolute power corrupts absolutely – could lead an agency to rely more on coercion than law. It is an essential element of the rule of law that government action be subject to judicial review, and here EPA’s order likewise should be subject to review.

Here are my prior posts on the Sackett case:

• Court to Consider Administrative Compliance Orders
• Sackett v. EPA
• Sackett Oral Argument

At SCOTUSBlog, Lyle Denniston characterizes the oral argument in Sackett v. EPA as “A Weak Defense of EPA.” Perhaps that’s because the EPA’s position, applied in this case, is difficult to square with traditional notions of due process.  Denniston highlights one passage of the oral argument (transcript) that highlighted the nature of the government’s position:

JUSTICE ALITO: Mr. Stewart, if you related the facts of this case as they come to us to an ordinary homeowner, don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States? You don’t — you buy property to build a house. You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says: You have filled in wetlands, so you can’t build your house; remove the fill, put in all kinds of plants; and now you have to let us on your premises whenever we want to. You have to turn over to us all sorts of documents, and for every day that you don’t do all this you are accumulating a potential fine of $75,000. And by the way, there is no way you can go to court to challenge our determination that this is a wetlands until such time as we choose to sue you.

The federal government’s attorney did not have much of an answer other than to say that, in most cases, there would have been some prior communication between the landowner and the EPA or Army Corps alerting the landowner to the potential problem, at which point the landowner could have filed a permit. Yet whether a permit is necessary in the first place is part of what is at issue, which prompted Chief Justice Roberts to characterize the federal government’s position as: Since you didn’t ask us whether we could regulate your property, we get to do it. After all, Roberts noted later, most landowners will not violate the order and risk the resulting accumulation of penalties just to get their day in court. As Justice Scalia noted later, in most cases, if the government is threatening to prosecute you, rather than “wait for the prosecutor to drop the hammer,” you may go to court to seek a declaratory judgment to resolve the question. Yet here, where the government has done more than merely threaten prosecution, no such pre-enforcement review is available. Worse, refusing to comply with the government’s order is, itself, a legal violation. It would be one thing to defend this sort of system where time is of the essence — such as where prompt action is necessary to prevent severe, ongoing contamination, such as from a hazardous waste spill. It’s quite another to try and defend this as “due process” when what is at issue is a the deposit of clean fill on a half-acre plot of land that may not even be within the scope of federal regulatory jurisdiction in the first place.

UPDATE: At Legal Planet, Richard Frank comments:

There seems little doubt from the oral arguments that the Sacketts will prevail before the Supreme Court, and that the lower court decisions will be reversed. (Having attended today’s arguments, I count at least seven justices siding with the Sacketts, and it’s conceivable that the opinion may even be unanimous.) The more difficult–and intriguing–question is how sweeping or narrow a decision will the justices issue? Will the anticipated ruling against EPA be confined to enforcement of the Clean Water Act, or might it extent to a host of other federal environmental laws that EPA frequently enforces through the issuance of ACOs? And will the Court base its decision on exclusively on statutory grounds, or will it follow the urging of several of Sacketts’ amici to find that the lack of judicial review of ACOs represents an unconstitutional deprivation of due process?

Today the Supreme Court hears oral argument in Sackett v. EPA, a challenge to the federal government’s claim that landowners (and other regulated entities) may not obtain pre-enforcement review of an administrative compliance order under the Clean Water Act.  I previewed the case before.  Here is how the WSJ reports on the case this morning:

Based on “any information”—even a newspaper article or an anonymous tip—the Environmental Protection Agency can issue an administrative compliance order directing a property owner to stop discharging pollutants or restore a damaged wetland. The government says such directives, similar to stop-work orders by local zoning inspectors, allow it to respond rapidly to prevent environmental damage.

But business groups contend that the EPA acts as a judge and jury, forcing property owners either to comply, often at great expense, or risk penalties of up to $37,500 a day if the agency later obtains a court ruling to enforce its directive.

Challengers say that by issuing compliance orders without first giving property owners a chance to contest them in court, the EPA skirts the federal law and the Fifth Amendment guarantee of due process.

The NYT editorializes on the case today as well, suggesting that the Sacketts must lose because (gasp) their position might benefit corporations.

This case goes far beyond the Sacketts’ right to fill in their lot without a permit. If the Supreme Court allows them to seek pre-enforcement review, it will be handing a big victory to corporations and developers who want to evade the requirements of the Clean Water Act.

One fact the NYT (and many commentators) ignore is that allowing pre-enforcement review of administrative compliance orders does not relieve regulated parties of the obligation to comply with such orders.  Judicial review does not automatically stay enforcement of the order, so allowing regulated entities their day in court does not necessarily entail allowing them to  continue to engage in allegedly polluting behavior.  It does, however, prevent agencies from using enforcement leverage to force compliance with rules that may not even apply.  In the Sacketts’ case, for instance, the whole question is whether their land is subject to federal regulation in the first place.  Granting pre-enforcement review does not automatically entitle them to continue building their house, but it does prevent the EPA from piling on penalties before the jurisdictional question is answered.

The briefs for the case are on SCOTUSBlog, and here’s an article in Regulation by PLF attorney Tim Sandefur, advocating the Sacketts’ position.