Another day, another federal judge demanding that Trump continue an unlawful, discretionary policy of the Obama administration. Yesterday, South Carolina District Judge David Norton, a George W. Bush appointee, ruled that the Trump administration didn’t offer proper notice when it countermanded Obama’s “Waters of the United States (WOTUS) rule.” Consequently, he is mandating that the EPA and Army Corps of Engineers continue regulating private property that contains streams, pools, and drainage ditches as commercial waters, in contravention of law.
Regulate your drainage ditch?
The Clean Water Act granted the EPA and Army Corps of Engineers power to regulate navigable waters, which, to anyone who understands English, means large bodies of water that are used for transport by ships. In June 2015, as part of a series of lawless abuses of the Clean Water and Clean Air acts, President Obama unilaterally expanded the definition of “navigable waters” to include any seasonal stream of water that might run through private property as part of federal jurisdiction subject to water regulations.
Commercial ships and barges do not use streams and drainage ditches in farmland, yet with the stroke of a pen, Obama subjected them to cumbersome federal regulations that increased the burden for permitting needed for land development and even hurt existing landowners with threats of fines for what they do with their drainage on their own land. Under the rule, any low-lying area that could collect seasonal water could be subject to water regulations preventing farmers, ranchers, and foresters from operating certain equipment or bringing dirt, gravel, pesticides, and fertilizer into the area.
Amid the clamor by the political class for “criminal justice reform,” aka jailbreak for violent drug traffickers, gun felons, and even murderers, it is regulatory crimes like this that need real reform. To that end, last June, Trump’s EPA decided to countermand Obama’s WOTUS rule and revert back to the commonsense definition of navigable waters that had been in place since 1980. The suspension rule was published in the Federal Register on February 6, 2018, but was subject to an immediate lawsuit by the professional litigator class.
According to judges, Trump is bound by Obama, not the law and the Constitution
A president can always countermand a regulation or program optionally implemented by a previous president, most certainly ones that violate existing statute or federal authority, such as the WOTUS rule and Obama’s executive amnesty.
But now, a Bush judge, at the behest of several liberal state governments and environmental defense groups, is saying Trump must continue this nonsense. Judge Norton once again applied his rule universally nationwide, outside his jurisdiction. As they have been doing with every Obama policy concerning the environment, labor, or immigration that Trump merely revokes, random plaintiffs are able to get standing and simply say that Trump violated the Administrative Procedure Act (APA). The APA requires public notice for any changes to regulations and to articulate the reasoning behind the change.
Ironically, the APA was designed to prevent lawless administrative procedures and lawmaking by fiat, but it is now being used against Trump when he simply reinstates the policies that were in place for decades before Obama unilaterally changed them. By definition, liberals will disagree with the substance of his policies and always say they were not well thought out, thereby rendering them “arbitrary and capricious.” And the courts are codifying that political argument as a legal mandate to say that everything Obama did – no matter how lawless – was automatically thoughtfully implemented and when Trump merely reverses those policies, he is always being arbitrary and capricious.
In reality, the fact that a president makes up a policy that supersedes his power is enough of a reason to discontinue it. Garbage in? Take the garbage out. In fact, in this case, a Georgia district court issued an injunction in June the other way and ruled that the WOTUS rule itself violated law. Thus, we now have conflicting judges, which in itself demonstrates the absurdity of judges deciding politics.
The crisis in the courts stems from bad rules of standing
This case reveals the absurdity of how courts are granting standing to straw-men plaintiffs in order to create policy. The dueling and conflicting lawsuits are not on equal footing. Farmers, ranchers, and energy and mining workers have a legitimate “case or controversy” with established injury-in-fact. It is those industries that face wholesale collapse resulting from EPA regulations. They are directly being threatened with fines for violating a policy that is vaguely defined and beyond the scope of the applicable statutes. They have every right to sue defensively to be left alone and not punished by a lawless policy.
Contrast this with the environmental legal defense groups that launch class action suits simply because they stand in opposition to the ideology of those in power. Even though there is no established personalized injury, they seek to enact regulatory policies without passing a bill in Congress. They should never have standing in court to simply oppose policies they disagree with when agencies are following the letter of the law. Yet, in the ’70s, the Supreme Court began overturning settled law regarding the rules of standing and essentially granting any third-party ideological group standing to sue against the lack of overzealous environment regulations (Sierra Club v. Morton (1972) and U. S. v. SCRAP (1973)).
I’ve written extensively about the courts mandating that Trump continue Obama’s lawless immigration policies, but they’ve been doing the same thing on regulatory policy as well. This is a growing problem that is essentially creating a third Obama term. Earlier this year, a California judge ruled that Trump must continue Obama’s methane regulation on power plants. Another judge ruled he must continue the ozone rule.
Congress must rein in the ability of the legal profession to enact judicial regulations in place of Obama’s administrate regulations. As we’ve noted many times, with few exceptions, the courts only have jurisdiction over the subject matter granted to them by Congress. The power of the courts to engage in judicial review over agency regulatory policy comes from Sections 701-706 of the Administrative Procedure Act. Congress must revise 5 U.S.C. § 702 to raise the threshold for injury-in-fact, causation, and redressability for third-party groups suing for non-economic or phony economic grievances that are speculative and not personalized.
Which brings us to the final point: redressability: A court has no power force actions on the executive branch. A court can’t say, “You must regulate this.” By definition, regulation is an executive function. A court can only do the opposite – negate the action of the executive – to grant relief to individual plaintiffs being fined by the executive branch. In this case, given that the administration rightfully believes Obama’s regulation violates the law and even the Constitution, the administration must only use its executive powers in concert with the law, not an arbitrary and capricious judge.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.