Law

A Defensive Victory Against Administrative Tyranny

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In 2005, Mike and Chantell Sackett purchased a small lot in Iowa (.63 acres) for $23,000. When they began to lay gravel on the land, which is located in a residential neighborhood, they were hit by an EPA compliance order informing them that the property had been designated a wetland under the Clean Water Act. They were ordered to stop grading their property and were told that they would face fines of up to $75,000 per day if they did not return the parcel to its original state. When the Sacketts attempted to contest the order, the agency denied their request for a hearing.

The case went to the Supreme Court, and in March, Justice Antonin Scalia, writing for the court, said that the Sacketts are entitled to appeal the EPA order, rejecting the agency’s claims to the contrary. “The [law’s] presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all,” Scalia said in the decision. “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.”

Scalia also noted that the Sacketts’ property bore little resemblance to any popular conception of a wetland, protected or not.

“The EPA used bullying and threats of terrifying fines, and has made our life hell for the past five years,” said Mr. Sackett. “As this nightmare went on, we rubbed our eyes and started to wonder if we were living in some totalitarian country. Now the Supreme Court has come to our rescue and reminded the EPA — and everyone – that this is still America.”

Read this post…the personal cost of big-government thuggery…for more on the Sacketts’ ordeal.

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Disgusting

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A law firm is advertising on CNBC, trying to gin up plaintiffs for lawsuits against siren manufacturers. The pitch is: “Have you lost hearing after working around loud sirens?”

There must be people who have lost hearing from sirens. However, sirens are supposed to be loud. No one could reasonably expect otherwise. Nor is it the responsibility of siren makers to protect people from sirens. Individuals, and perhaps their employers, should do that.

Probably what the lawyers intend to do is find a large group of people who have imperfect hearing and used to drive ambulances or work in factories, assert that their hearing problems result from on-the-job exposure to sirens, and extract a settlement from siren manufacturers who want to avoid expensive litigation and the financial Sword of Damocles of a possible adverse jury verdict (jurisdiction to be selected for maximum plaintiff-friendliness).

Who will bear the costs of these cases (unless they are thrown out as they should be)? The siren manufacturers will go out of business, pay out a lot of money and/or move overseas. Sirens will cost more. The private firms and governments that use sirens will pass along the higher costs in the form of higher prices for their products, higher taxes and fewer jobs. Perhaps they will use fewer sirens in the future, which might lead to more accidents and related costs. Employers will tell workers to wear ear plugs, but many workers will not do so. Some of the plaintiffs, whose hearing loss may or may not have been caused by sirens, will receive windfalls. The lawyers will make a lot of money and look for other industries to plunder. Maybe they will sue rock bands or the Army next.

Derb and All

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So the blog kerfuffle du jour is John Derbyshire and the internet essay that he wrote for another obscure blog-magazine, the topic of which has raised such a general ruckus among the right-thinking side of the blogosphere, that it got him dumped over Easter weekend from the National Review and has the Breitbart conglomerate all in a twitter, and many of the rest of us on the libertarian/conservative/free-thinking side of the spectrum seeming to be thinking thoughts pretty much split three ways; cringing and thinking ‘oh, s**t’ or ‘about damn time’ and ‘ ‘OK then if representatives of the capital ‘B’ Black community can witter all over the print media and the intertubules about their worries about their children running afoul of the 21st century version of the KKK can those of us from the race of pallor worry frankly and openly about getting lost in certain neighborhoods, the odds on survival when taking the wrong exit off particular interstates in big urban areas, or the wisdom of going to certain sports venues without being armed to the teeth?’

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Barak Obama, Constitutional Scholar

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In Barak Obama’s resume was a statement that he taught constitutional law as an “adjunct professor” at U of Chicago Law School. I have never considered this to be a major achievement since adjunct professors are not paid and the subject he taught was more related to his other interests. Constitutional law was not one of them.

At the school, Mr. Obama taught three courses, ascending to senior lecturer, a title otherwise carried only by a few federal judges. His most traditional course was in the due process and equal protection areas of constitutional law. His voting rights class traced the evolution of election law, from the disenfranchisement of blacks to contemporary debates over districting and campaign finance. Mr. Obama was so interested in the subject that he helped Richard Pildes, a professor at New York University, develop a leading casebook in the field.

His most original course, a historical and political seminar as much as a legal one, was on racism and law. Mr. Obama improvised his own textbook, including classic cases like Brown v. Board of Education, and essays by Frederick Douglass, W. E. B. Dubois, the Rev. Dr. Martin Luther King Jr. and Malcolm X, as well as conservative thinkers like Robert H. Bork.

Mr. Obama was especially eager for his charges to understand the horrors of the past, students say. He assigned a 1919 catalog of lynching victims, including some who were first raped or stripped of their ears and fingers, others who were pregnant or lynched with their children, and some whose charred bodies were sold off, bone fragment by bone fragment, to gawkers…

Should we be surprised at his knowledge, or lack of it, on the basics of constitutional law ? Even his attempt to correct his clueless comments about judicial review are incoherent

Apparently unaware of the most basic principles of constitutional law, going back to Marbury v. Madison in 1803, he said:

I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.

And I — I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint; that, uhhh, an unelected, uhhh, group of — of people would somehow overturn, uhhh, a duly constituted and — and passed, uh, law. Uh, well, uh, uh, is a good example. Uhh, and I’m pretty confident that this, — this court will recognize that, uh, and not take that step.

The 5th Circuit Court of Appeals responded

Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

Marbury vs Madison is one of the oldest and most basic cases that would be studied by a law student interested in Constitutional Law. The fact that our president does not know this ranks with his comments on speaking “Austrian” in Austria and his estimation of the number of US states.

Is he really this dim ? Did Harvard turn out this affirmative action dullard and inflict him on the country ?

The Era of the Creepy-State is Here

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George Orwell was more right than he knew….

Congress passed a law – by unanimous consent in the Senate and by a suspension of rules in the House – to permit the Federal government to arbitrarily arrest and imprison for up to ten years members of the serf class (formerly known as “American citizens”) whose presence annoys or offends specially designated members of the elite and foreign dignitaries. A list that will no doubt expand greatly in future legislation to include very “special” private citizens.

Think about that, future “Joe the Plumbers” or Cindy Sheehans, before you ask an impertinent question of your betters or wave your handmade cardboard sign. Is ten seconds of glory on your local ABC affiliate news at 5 o’clock worth that felony arrest record and federally funded anal exam?

No? Then kindly shut your mouth, sir. Learn your place.

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