Tag Archives: freedom

One for the Good Guys

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“The Clean Water Act prohibits the discharge of any pollutant by ‘any person,’ without a permit, into ‘navigable waters’,” noted the Supreme Court in the summary of its just concluded ruling in Sackett v. Environmental Protection Agency.  It went on in that summary:

The Sacketts, petitioners here, received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act.

A little background at this point: the case got to the Supreme Court because Mike and Chantell Sackett began construction on their dream home in 2007, on a lot completely surrounded by a developed residential neighborhood, complete with lots of already existing sewer lines.

The EPA decided that this completely residentially surrounded lot had wetlands on it connected to navigable waters, and it issued a compliance order to desist from construction and to restore the wetlands (violation of the order carried potential penalties of $75,000 per day—for those keeping score at home, that works out to an accrued penalty of $130 million).  Rather than rolling over and giving up on their dream, the Sacketts sought relief in Federal District Court for the District of Idaho (their property was in Bonner County, ID), arguing among other things an illegal taking under the Constitution’s 5th Amendment.  The Court dismissed and the Ninth Appellate (of course) sided with the EPA and upheld the District Court.  After all, the Ninth held, the CWA has no mechanism for a private citizen to object to the EPA’s diktat, and so there was no standing to sue.  The Sacketts appealed to the Supremes.

The Supreme Court’s unanimous ruling was short and sweet in its essence:

The Sacketts may bring a civil action under the APA to challenge the issuance of the EPA’s order.

Justice Antonin Scalia, writing for the Court, also had this to say about the government’s arrogance, particularly its claim that were EPA compliance orders subject to judicial review, the EPA’s ability to enforce clean water protections would be interfered with [emphasis mine]:

The Government warns that the EPA is less likely to use the orders if they are subject to judicial review.  That may be true—but it will be true for all agency actions subjected to judicial review.  The APA’s [Administrative Procedure Act, which provides for judicial review of agency rulings and orders] presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.  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.

Justice Samuel Alito, in a concurring opinion, added this about the government’s arrogance [emphasis added]:

The position taken in this case by the Federal Govern­ment—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees. …

Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. … In a nation that values due process, not to men­tion private property, such treatment is unthinkable.

Although this particular EPA abuse began under another administration, it remains a glaring example of the unbridled self-importance of the agency and of its routine reach for additional power.

It’s also clear example of the necessity of abolishing this agency: it’s too far, and for too long, out of control, and it is irredeemable.

2nd Amendment and the Fifth Circuit

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The Wall Street Journal‘s Law Blog has a description of an egregious gun rights case.  It seems that, when Errol Houston was arrested in New Orleans in 2009 on drug and firearm charges, the police seized a properly registered gun that he had.  So far, so good—when the police arrest someone, they’re allowed to disarm him, too.  However, when the charges were dropped, the city refused to return his weapon to him.  He sued for the return, and amazingly, the district court found for the city.  Even more amazingly, the Fifth Circuit upheld the ruling, with this…logic…written by Judge Rhesa Hawkins Barksdale:

Just as some regulation of speech–e.g., of obscenity and defamation–is “outside the reach” of the First Amendment, so, too, is some regulation of firearms outside the reach of the Second.  The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense.

Houston has not alleged defendants prevented his “retaining or acquiring other firearms.”  Therefore, he has not stated a violation of his Second Amendment right to keep and bear arms.

Judge Jennifer Walker Elrod dissented.  In addition to pointing out the degree of legality of the majority opinion, violating as it does the Supreme Court’s prior rulings in similar cases (vis., District of Columbia v. Heller and McDonald v. City of Chicago), she also correctly explains the nature and meaning of the 2nd Amendment:

In the context of other enumerated constitutional rights, an equivalent per se exception for particular exercises of the right at stake (so long as other exercises of that right are permitted) would be intolerable.  Consider, for example, a court holding that the Free Speech Clause affords no protection against the government preventing the publication of a particular editorial in the New York Times because there are plenty of other newspapers that might publish the piece.  Or consider a court holding that the Fourth Amendment is inapplicable to the unreasonable seizure of a specific automobile so long as the government does not prevent the owner from borrowing, renting, or purchasing a replacement vehicle.  These examples should suffice to show the absurdity of courts recognizing categorical exceptions for each particular exercise of those rights.  In carving out such an exception from the Second Amendment, today’s majority impermissibly treats the Amendment as a “second-class right.”

Judge Elrod is right that the accessibility of alternatives is irrelevant—those alternatives are not the item itself, and the item itself remains the legitimate property of the owner.

Both the majority and Judge Elrod miss a larger point, though: the “right of the people to keep and bear Arms” is, indeed, a property right, but it is a different and more fundamental kind that that alluded by Judge Barksdale and accepted by Judge Elrod.  This property is one flowing from the endowment imbued in us by our Creator, a property of our being.  As such, Judge Elrod is right, but she doesn’t go far enough.  It is the regulation of our endowed rights that is the exception, not the possession of this or that particular item in a realization of one or more of those rights.

Pause for Commercial

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My book, A Conservative’s Manifesto: A Brief Discussion of some Principles, has been published, and it can be found, among other places, at Amazon.com (paperback, Kindle, or hardcover) and at Barnes & Noble (paperback, Nook, or hardcover). Links also can be found nearby in the column to the right and on the newly added Books page.

The book lays out, in so many words, a set of (modern) Conservative principles that are tied back to the 18th Century Liberal principles that guided our Founding Fathers in developing our American social compact.  I begin with a description of those 18th Century Liberal principles and continue with a description of our drift away from them over the last 80 years, beginning with FDR’s administration.  I also describe a modern Conservatism that is those 18th Century Liberal principles brought forward to today, and I apply those principles to a number of critical aspects of American life: faith, citizenship, the nation, our economy, and our government.  I close by contrasting modern Liberal/Progressive concepts with these modern Conservative concepts and offering a path back to those modern Conservative tenets that made our country so exceptional and so great.

I hope you find it both enjoyable and useful.

A Risk to Federalism

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It always starts from the best of intentions.  The Senate is unhappy with the lack of uniformity of driving laws governing teenage drivers across the States, so it wants to impose national standards.  Specifically, the Senate wants to use a two-year, $109 billion highway bill currently under consideration as the, umm, vehicle for imposing national standards for teenager cell phone use while driving and for teenage driver licensing requirements, among others.  The thinking seems to be that the Feds got away with this concerning minimum drinking ages, so they can do it again in this area.

But the Feds didn’t, entirely, get away with it concerning drinking ages.  In South Dakota v. Dole, the case concerning the imposition of a national minimum drinking age, the Supreme Court ruled (not entirely correctly) that

[T]he relatively small financial inducement offered by Congress here – resulting from the State’s loss of only 5% of federal funds otherwise obtainable under certain highway grant programs – is not so coercive as to pass the point at which pressure turns into compulsion.

Thus, to comply with the Court’s ruling, the Senate’s use of the spending bill—or any other means—to obtain State acquiescence with the Feds’ national standard must be done carefully.

I claimed above that the Court got Dole only partially right.  Under the Federalism structure of our nation, the Federal government cannot (not just may not) force the States, individually or as a group, to do very much at all.  This is clear from Article I, Section 8; Article I, Section 10 [sic]; and the 9th and 10th Amendments.  Mandating national standards for matters that are internal to the States (vis., the rules by which a State’s citizens might drink, or drive, or etc. within that State) is prohibited by our Constitution.  The Court plainly understood this with its Dole ruling.

However.

The Court’s understanding falls short, as demonstrated by that phrase pass the point at which pressure turns into compulsion.  It waffled on where to draw that line.  It had to waffle, because that line cannot be drawn.  It is the nature and purpose of “pressure” to get the target of the pressure to comply.  The first iota of pressure has as much compulsory content as the last iota that pushes to total over that line to a compulsion that even a Supreme Court can recognize.

The President can use his bully pulpit quite legitimately—and Presidents often do, beginning with Teddy Roosevelt—to jawbone with his target audience to get this or that issue handled “his way.”  So can the Senate, or the House, or the Congress as a whole.  There is, though, a not very fine line between remonstrating, on the one hand, and forcing (or “pressuring” for) compliance—compulsion—on the other.  Putting such jawboning into legislation goes far beyond mere argument and becomes an attempt at compulsion, albeit with a cotton glove.

The greater risk is not to our teenagers, or fellow travellers, from their driving habits, but to the Federal nature of our nation from a central government imposing uniformity on things that properly are within the…province…of our States.  That greater risk includes the risk to our teenagers’ welfare.

On the other hand, this might be a fine opportunity for the States to set a powerful precedent.   This might be the place for the States to start saying, “Done and done.  Keep your Federal highway dollars.  We no longer wish to have your Federal hands in our State pockets.”

Freedom, Competition, and Education

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It seems that Georgia wants to improve its educational system, but those wedded to the status quo like the way things are and are trying to block the improvement.

Under current law, local school boards have veto authority over whether charter schools could be licensed in their districts.  That’s like letting existing neighborhood grocery stores decide whether or not a new grocer could set up business in their neighborhood.  Predictably, the school boards routinely rejected charter school applications.  In response, the state created the Georgia Charter Schools Commission, and that body began approving charter schools over the local boards’ objections.  The state’s Supreme Court ruled that illegal, and in turn, the state legislature now is debating an amendment to the state’s Constitution that would allow the state to create its own K-12 system, parallel to the local systems, and using the same pool of Georgia taxpayer funds that the public school systems use.  This will be, essentially, the GCSC process written into the state’s constitution, if the amendment gets through the legislature and onto the November ballot, and then is voted up by the Georgia voters.

The Professional Association of Georgia Educators objects to this.  Tim Callahan, PAGE’s Director of PR, Membership & Publications, had this to say:

The Georgia Constitution says local boards control where local dollars go, so if a charter school only gets state approval and not local approval, no way can they receive local funds.  They can only receive state funds.  The people who are putting this constitutional amendment on the ballot are trying to do that in our Senate right now—are really trying to do a run-around the Supreme Court ruling.

Let me see if I understand this argument: a constitutional amendment, which by its nature addresses the state Supreme Court’s concerns, is a run-around of the State Supreme Court.  Have I about got his argument surrounded?  How, exactly, does this represent a run-around?

State Congressman Ed Lindsey (R, ATL) offers this response:

Charter schools are part of an overall tool in the tool box for education reform.  It, along with the myriad of other programs, is extremely important in terms of giving parents and students a greater choice in what is the best education for a particular child, and it encourages education achievement and success along the way.  It creates innovation.

It’s come down to this, as Lindsey also points out:

In the education reform battle, often times things boil down to a turf battle, and that’s what we have here.  We have some local school systems that are worried that by virtue of having state charter schools that some of their turf is getting interfered.  But it’s about the children and the choice.  It’s a control issue, and it always has been.

Competition is an excellent means of improving the quality of the children’s education.  One effect of competition is a more efficient allocation of taxpayer money, because if schools aren’t producing quality students, they don’t need to continue collecting that money.  Certainly, it’s in our interest nationally, and in Georgia’s interest and in the interest of the local communities, to have an education system that produces well-educated students capable of critical reasoning, but that interest mandates no particular structure to the system.  Competition will spur the necessary improvements—with a beneficial side effect of that improved funds allocation.  What is there to fear?