October 2, 2022

"[T]here is a feeling that the conservative Justices could make a landmark ruling out of almost any case."

"Sackett v. Environmental Protection Agency, the first case of the term, may seem to address a narrow question—the definition of 'navigable waters'—but it could become a vehicle for dismantling a wide range of regulations.... The Court will also adjudicate a suit, brought by Texas and Louisiana, claiming that the Biden Administration has, in effect, broken the law by focussing its border-enforcement efforts only on certain categories of migrants, such as those deemed a 'threat to public safety.' Notably, some Republicans have raised the possibility that, if the G.O.P. takes control of the House after the midterms, they may impeach President Biden on similar grounds...."

Writes Amy Davidson Sorkin, in "The Supreme Court’s Big New Term/There is a feeling with this Court that the conservative Justices could make a landmark ruling out of almost any case" (The New Yorker). 

59 comments:

Dave Begley said...

Is there any real doubt that Biden should be removed from office by the Senate? Is that a bad thing?

Howard said...

Elections matter.

Heartless Aztec said...

Long overdue look-backs on judicial decisions. Dobbs was a good start.

Kate said...

Is this about restricting a landowner because, say, spring runoff can create a temporary pond on the property? The administrative state has been overstepping for decades. I hope SCOTUS comes in with a vengeance. It feels like progressives won't ever listen or moderate or compromise. And now here's another article passing around the smelling salts, so offended the little people might get a win.

Unknown said...

"Landmark" rulings are any ruling that goes against the Democrats.

All other rulings are just normal jurisprudence.

boatbuilder said...

Umm. A decision limiting the scope of federal jurisdiction over "navigable waters" to something reasonably approximating waters which are actually navigable, would be long overdue, and would be a "landmark" decision.

I know that you know this, Professor, and have posted this to get us talking.

Iman said...

Fuck their feelings.

mezzrow said...

A feeling. About the rulings.

"A reprise of January 6th is not so hard to imagine. If Roberts then finds himself, once again, driving past barricades, they may be ones that the Court helped to build."

Imagine the feeling we will have.

I've never met the ruling but I can't forget the ruling
(Just my imagination) Ooh, yeah, yeah, yeah, yeah
Runnin' away with me, ooh
Just my imagination
Runnin' away with me

hombre said...

I don't know about SCOTUS landmark decisions, but if a Republican House impeaches QuidProJoe, they truly are "The Stupid Party." He is great for Republicans!

The should focus on fixing the country, not emulating corrupt Democrats.

Earnest Prole said...

A counterrevolution isn’t a dinner party.

Andrew said...

From Sorkin's mouth to God's ears.

Kevin said...

I look forward to the day when Conservatives form the Actual Civil Liberties Union to do the work the American Civil Liberties Union has abandoned.

MikeR said...

That is such a cool idea. The Supreme Court may finally insist that the United States Federal Government follow the Constitution of the United States.

~ Gordon Pasha said...

From her pen to God’s eyes

Doug said...

So much liberal 'legislating from the bench' to be undone.

Tina Trent said...

Elena Kagan certainly knows how to grab a legal system. She did it to criminal law in the states using the fingers of federalism in 1997, and only now are people waking up to the consequences.

Maynard said...

The otherwise weak kneed Brett Kavanaugh may shine in cases involving regulatory agency overreach.

The administrative state is growing so large and powerful that we are becoming a representative democracy in name only.

Gunner said...

Biden should be impeached 3 times. The Republican Speaker can hand out the pens for the occasion like Pelosi did. No need to put any effort in the Senate since it won't matter.

Lem Former Twitter Aficionado said...

I’m not a legal scholar but even I know that cases that windup heard by the supremes are not just any case.

#DeadJournalism

gilbar said...

seem to address a narrow question—the definition of 'navigable waters'

well, that's The Thing, Isn't it?
If a stream is SO NARROW, that you can't put a canoe in it.. Is it 'navigable waters'

Larry J said...

On the EPA question, I can only hope that some of the justices have read "Is Administrative Law Unlawful?" by Philip Hamburger.

https://press.uchicago.edu/ucp/books/book/chicago/I/bo17436684.html

The author raises some interesting questions. Some of the administrative agencies have not only written their regulations (which have the force of law), they have enforcement agents (often heavily armed) and some even have their own courts (e.g., IRS). That means they combine legislative, executive, and judicial functions into a single agency, violating the Constitution's separation of powers. Congress authorized this (violating their oath to the Constitution), but that doesn't mean it's legal. There was a federal Line-Item Veto enacted in 1996 that the court struck down in 1998. From Wikipedia:

"Congress granted this power to the president by the Line Item Veto Act of 1996 to control "pork barrel spending", but in 1998 the U.S. Supreme Court ruled the act to be unconstitutional in a 6–3 decision in Clinton v. City of New York. The court found that exercise of the line-item veto is tantamount to a unilateral amendment or repeal by the executive of only parts of statutes authorizing federal spending, and therefore violated the Presentment Clause of the United States Constitution. Thus a federal line-item veto, at least in this particular formulation, would only be possible through a constitutional amendment. Prior to that ruling, President Clinton applied the line-item veto to the federal budget 82 times."

If Congress didn't have the authority to grant the president a line-item veto, how can they grant executive agencies so much power? If the court were to rule that way, it would be a bombshell that would make the Dobbs decision look trivial. It would do more to reign in the Swamp than anything in our history. Not holding my breath on that one, but perhaps last session's EPA decision was a step in that direction.

AMDG said...

Hombres - I agree with you regarding a potential impeachment of Dementia Joe.

Instead of impeaching have J6 Committee hearings focused on the damage that Democrat energy policies are doing.

Concentrate on the issues that matter to people.

An impeachment with no hope of success would be a waste of time.

Owen said...

Hombre @ 7:23: agree. A GOP majority should conduct damage control: not try to replace the President outright but neutralize him and starve his agenda of funds.

But I doubt the election will produce a GOP majority. Because it will be an “election.”

Mike (MJB Wolf) said...

Too bad that yet another plainly written term “navigable waters” is about to be redefined by Democrats as “any water we goddamned feel like regulating.

ccscientist said...

If it isn't a "landmark case" why is it before the court?
As to "Waters of the US" the tendency under dem admins is to try to regulate every drop of standing water, including a mud puddle in your back yard. The law refers to "waters of the US" and the problem is that this is not defined. Traditionally, this meant waters involved in interstate commerce (because it is a federal law)--waters of the US--and was implemented in terms only of waters capable of supporting commerce (ie navigable).

The Drill SGT said...

translated

The left expects to be outraged by any case whose decision doesn't go their way.

Aggie said...

Just imagine that, the notion of a Supreme Court going around, making Landmark rulings.

who-knew said...

"Sackett v. Environmental Protection Agency, the first case of the term, may seem to address a narrow question—the definition of 'navigable waters'—but it could become a vehicle for dismantling a wide range of regulations...." What boat builder said. It's about time the ridiculous ever expanding definition of navigable waters was reined in and we will lucky if it leads to "dismantling a wide range of regulations". If the court gets this one right (not guaranteed since they allowed the administrative state to detach the definition of navigable from the definition of navigable waters in the first place), I hope someone can get a case that constrains the equally ridiculous expansion of the meaning of interstate commerce. Repeal Wickard v. Fillmore!!

Mike Sylwester said...

Impeach Biden right away for 1) refusing to enforce immigration law, and 2) canceling the student loans.

Impeach him later on other charges. Impeach him every half-year or so.

Investigate his corrupt business dealings with Hunter Biden.

Remove all the Squad members (AOC, etc.) from all their committees.

Lurker21 said...

"Landmark" rulings are any ruling that goes against the Democrats.

"Landmark" rulings used to be a good thing for the New Yorker.

Now they are a bad thing.

gspencer said...

"the first case of the term, may seem to address a narrow question—the definition of 'navigable waters'—but it could become a vehicle for dismantling a wide range of regulations"

If the Constitution, first and foremost a document of limitation, were followed as written, fedgov would be one-tenth its present size and we would be freed of that much of its nonsense.

Michael K said...

Brandon has impeachment insurance. Not just Harris but look at the succession after her. Next comes Pelosi and it doesn't get any better.

mikee said...

Having run into the issue of fed control of navigable waters, regarding a pasture with a drainage ditch running through it, the issue is NOT minor, nor technical. It is the difference between federal control of rivers and lakes versus federal control of essentially ALL land in the US.

Ann Althouse said...

From the petitioner's brief in Sackett:

"In 2007, Petitioners Michael and Chantell Sackett set out to build a modest family home on a two-thirds- of-an-acre lot in an established residential neighborhood near Priest Lake, Idaho. Fifteen years later, those plans remain on indefinite hold. Not long after the Sacketts started construction, Respondent United States Environmental Protection Agency ordered all work to stop, on pain of crushing fines, because it asserted that the Sacketts’ land contains “navigable waters,” 33 U.S.C. § 1362(7), regulated under the Clean Water Act, id. §§ 1251-1388. The Sacketts’ property contains no stream, river, lake, or similar waterbody. Yet EPA persists in its view that the Sacketts must obtain federal approval to build on their lot. It contends, and the Ninth Circuit agreed, that the Sacketts’ proposed house requires a Clean Water Act permit because: Priest Lake is a navigable water → A non-navigable creek connects to Priest Lake → The non-navigable creek is connected to a non-navigable, man-made ditch → The non- navigable, man-made ditch is connected to wetlands → These wetlands, though separated from the Sacketts’ lot by a thirty-foot-wide paved road, are nevertheless “similarly situated” to wetlands alleged to exist on the Sacketts’ lot → These alleged wetlands on the Sacketts’ property, aggregated with the wetlands across the street, bear a “significant nexus” to Priest Lake. See Cert. App. A-33 to A-36; C-3, C-8, C-13. As circuitous and strained as this theory is, it gets even worse. For, as EPA itself recognizes, no water at all—surface or subsurface—flows from the Sacketts’ lot to the wetlands or to the ditch across the street. See Joint Appendix (JA) 28-29, 32."

https://www.supremecourt.gov/DocketPDF/21/21-454/220716/20220411143433423_FINAL%20Sackett%20Opening%20Brief.pdf

Kathryn51 said...

Michael K said...

Brandon has impeachment insurance. Not just Harris but look at the succession after her. Next comes Pelosi and it doesn't get any better.

That's assuming the Dems still control the House after November.

TreeJoe said...

When someone begins their positioning of a pending Supreme Court case as “minor”, you can assume they don’t actually
Know what they are talking about.

Almost no one fights through the courts and cost to get to the Supreme Court for something minor.

Thanks for sharing that brief Ann. How on earth has this case persisted through 3 executive administrations. I would assume local representation and various elected officials would have brought significant pressure on the EPA to alter their position. Further how did it get all the way to SC. What prior courts agreed with the EPA.

holdfast said...

The Biden maladministration’s colossal dereliction of duty on enforcing the border is absolutely an impeachable offense. And it’s exactly why when the Democrats were inventing charges to impeach President Trump, they stayed far away from any sort of dereliction of duty argument, because dereliction of duty is their plan and their governing philosophy. And they didn’t want to create a precedent, or even a public notion.

But all that said, if you don’t have the votes in the Senate to convict, or at least a reasonable chance of garnering those votes, there’s no point to impeachment.

Mike said...

Hey "Landmark rulings"--that's just the way the Supreme Court rolls. And so what? Sometimes they roll left, sometimes they roll right. Deal with it.

holdfast said...

EPA overreach may be a technical issue, but it’s a technical issue that he’s having a massive impact hundreds of thousands or even millions of individual American

Greg The Class Traitor said...

seem to address a narrow question—the definition of 'navigable waters'

Well, since the Left has used that "narrow question" the basis for regulating the hell out of things they shouldn't....

Unknown said...

"From the petitioner's brief in Sackett:

Bla bla fucking bla.

The problem we have here isn't the EPA's view, or the Sacketts view, or anything alleged in this brief or even related to this case.

The problem in the United States of America is that federal judges have no checks or balances on their abuse of citizens. Which the US Supreme Court refuses to deal with.

Federal judges can be ruled by the Supreme Court to have violated the Constitutional rights of American citizens with complete impunity hundreds of times, and face zero legal consequences. Such judges can be wrong on the law and wrong on the Constitution in EVERY SINGLE CASE THAT COMES BEFORE THEM, and yet the citizenry have no means to remove such obviously corrupt judges from the courts.

As long as federal judges can use their places on the bench to legislate the Democrat Party's agenda - FACT FREE and regardless of the written law and written Constitution - then the problem has not been resolved.

The Supreme Court needs to remove the federal judges in this case who decided for the EPA (which it can legally do). And if it doesn't do that, then it is not interested in justice.

BillieBob Thorton said...

Claiming that a dry, as in never wet, drainage ditch is a wetland much less a navigable one defies all logic and common sense.
We are living in some strange times.

Mike (MJB Wolf) said...

Thanks for the text. Who can honestly defend that ridiculous position?

n.n said...

The Biden administration supports immigration reform (e.g. labor arbitrage, democratic gerrymandering ("trafficking"), catastrophic anthropogenic ("CAIR"), DIE), Pelosi's "fruit pickers", in lieu of emigration reform.

Toxic capitalism (e.g. socialism, communism) and nominally secular creationists -- ironically, conception -- judging, labeling, lynching, cannibalizing, sequestering human lives on an emanation from a penumbra (i.e. twilight fringe).

n.n said...

Respondent United States Environmental Protection Agency ordered all work to stop, on pain of crushing fines, because it asserted that the Sacketts’ land contains “navigable waters,”

Retributive change? Prosecutorial discretion twice over with diverse precedents.

Michael K said...


Blogger Kathryn51 said...

Michael K said...

Brandon has impeachment insurance. Not just Harris but look at the succession after her. Next comes Pelosi and it doesn't get any better.

That's assuming the Dems still control the House after November.


Not necessarily. McCarthy may be an improvement on Pelosi. The rest?


No. Office[3] Incumbent Party
1 Vice President Kamala Harris Democratic
2 Speaker of the House of Representatives Nancy Pelosi Democratic
3 President pro tempore of the Senate Patrick Leahy Democratic
4 Secretary of State Antony Blinken Democratic
5 Secretary of the Treasury Janet Yellen Democratic
6 Secretary of Defense Lloyd Austin Unknown
7 Attorney General Merrick Garland Unknown
8 Secretary of the Interior Deb Haaland Democratic
9 Secretary of Agriculture Tom Vilsack Democratic
10 Secretary of Commerce Gina Raimondo Democratic
11 Secretary of Labor Marty Walsh Democratic
12 Secretary of Health and Human Services Xavier Becerra Democratic
13 Secretary of Housing and Urban Development Marcia Fudge Democratic
14 Secretary of Transportation Pete Buttigieg Democratic
–[A] Secretary of Energy Jennifer Granholm Democratic
15 Secretary of Education Miguel Cardona Democratic
16 Secretary of Veterans Affairs Denis McDonough Democratic
–[A] Secretary of Homeland Security Alejandro Mayorkas Democratic

Greg The Class Traitor said...

"[T]here is a feeling that the conservative Justices could make a landmark ruling out of almost any case."

There is an acknowledgement that left wing judges have so perverted the law and Constitution that in just about any case honest Justices will be faced with the opportunity to roll back illegitimate actions by their predecessors.

"Sackett v. Environmental Protection Agency, the first case of the term, may seem to address a narrow question—the definition of 'navigable waters'—but it could become a vehicle for dismantling a wide range of regulations

All of which are entirely illegitimate. Because they are based on an Administrative State power grab not backed by any actual legislation.

If I can not regularly "navigate" down some "waters", then they are not "navigable waters", and the Army Corp of Engineers has no say over them.

They do not have authority of "the entire watershed of the US". Until they do, as explicitly stated in a law passed by Congress and signed by the President, then they have no control over things that feed into "navigable waters", they only have authority over the actual navigable waters
.... The Court will also adjudicate a suit, brought by Texas and Louisiana, claiming that the Biden Administration has, in effect, broken the law by focussing its border-enforcement efforts only on certain categories of migrants, such as those deemed a 'threat to public safety.' Notably, some Republicans have raised the possibility that, if the G.O.P. takes control of the House after the midterms, they may impeach President Biden on similar grounds...."

Greg The Class Traitor said...

The Court will also adjudicate a suit, brought by Texas and Louisiana, claiming that the Biden Administration has, in effect, broken the law by focussing its border-enforcement efforts only on certain categories of migrants

Well, does the law SAY the Administration is free to ignore it? No?

Then the Biden Admin is vio0lating the law when it ignores it. No?

Can the next Trump / DeSantis Administration announce that it will only enforce laws against machine guns when they're in the hands of people committing other crimes? And allow any otherwise law abiding citizen to import, manufacture, buy, and sell machine guns, without paying any fees or going through any Federal regulation imposed hoops?

No?

Then we have the answer as to wether the Biden Admin Is allowed to ignore immigration law

Greg The Class Traitor said...

Notably, some Republicans have raised the possibility that, if the G.O.P. takes control of the House after the midterms, they may impeach President Biden on similar grounds

After impeaching Trump, twice, on utterly bullshit charges, do you idiots really believe that Biden won't be impeached by a GOP Congress?

JAORE said...

I was involved with "navigable waters" issues during my career. The rules changed frequently w/o any change to the Clean Water Act. Bureaucrats with a mission from God and all that.

One example I was hit with was the US Coast Guard telling my state counterpart a bridge project involved a navigable river. The state called me and said we don't know how to properly object to this. I sent the USCG a photo of the 40 foot waterfall adjacent to the downstream side on the bridge in question.

The issue was resolved.

Howard said...

I hope the most Catholic supreme Court of the deplorable States of America brings it radical and hard everyday all day. The DNC party line libtards that allowed Hillary Clinton to steal the nomination from Colonel Sanders have yet to get the motherfucking memo. Obviously they need a few more years of rough rogering to take the hint that maybe their agenda needs modification. Somehow I don't think Nancy pelosi scolding Rhonda Santa's to keep her cotton picking hands off our illegal aliens is going to work

donald said...

I like the idea of non-ending congressional hearings of the corruption of Joe Biden and Pelosi immediately. They will both be gone within six months. Make ‘em miserable, then in ‘24 withe the new Republican president, Senate and house, prosecute them. The new president will have to immediately fire every member of the DOJ, FBI and CIA immediately, but let’s face it, they’re all criminals and corrupt. They can all easily be replaced. They are not special or particularly smart.

Michael K said...

Howard, the time is here when you need help. That made no sense.

Gahrie said...

After impeaching Trump, twice, on utterly bullshit charges, do you idiots really believe that Biden won't be impeached by a GOP Congress?

I hope not.

Instead I hope they come out with a statement requesting the enactment of the 25th Amendment in order to spare the President from further suffering and abuse. Further torturing President Biden at this point would be pointless and cruel, and it would not be punishing those actually responsible for the corrupt and criminal decisions. They should continue to issue such requests with every gaffe and blunder. Meanwhile they should immediately rein in and dismantle the FBI.

Greg The Class Traitor said...

Gahrie said... Me: After impeaching Trump, twice, on utterly bullshit charges, do you idiots really believe that Biden won't be impeached by a GOP Congress?

I hope not.

Instead I hope they come out with a statement requesting the enactment of the 25th Amendment in order to spare the President from further suffering and abuse


Impeach him, demand he come testify, and make him testify for hours.

Having him come and melt down on National TV.

If his handlers refuse to allow him to come, then nail them for the fact that he's not qualified to hold the office, etc.

Put him, and them, on the spot

Caligula said...

The current Court is being criticized as "activist" and "political."

Yet much of what they are doing is undoing past Court legislation, er rulings, that were driven by political activism more than by the U.S. Constitution.

Is undoing past judicial political activism itself "activism," or is it more accurately described as returning the rule of Constitutional law to what is actually is in the Constitution?

Maynard said...

Howard, the time is here when you need help. That made no sense.

Mike, it is never about sense with Little Howie. It is all about attention.

He gets a little wacky when his vibrating butt plug is on the fritz. Be tolerant you homophobe!

Jeffrey S said...

I got a chuckle from Howard's reference that Colonel and Bernie are both "Sanders" surname. Obvious divergence many generations previous.

cubanbob said...

If my understanding of the navigable waters is correct and the court rules against the government that will be a huge blow to the Administrative state and to a lesser extent Congress. The case brought by Texas and Louisiana is also another huge case especially if it goes against the government and again to the Congress. What both of these cases come down to as I understand them is that Congress cannot delegate it's authority and the executive branch can't conjure authority that wasn't explicitly granted to it and the executive branch can just cherry pick the laws it chooses to enforce. As a layman I don't assume my understanding is legally correct but if the cases are decided against the government this may well be the biggest and most long lasting positive effect of the Trump Administration. But I am not getting my hopes up.