When President Trump nominated Brett Kavanaugh to the Supreme Court, the top constitutional lawyers in the country shared one predominant hope and expectation. Before the hearings, I spoke with five of the men who fought and won hard Supreme Court battles for religious freedom, property rights, and freedom of speech. All of them told me the same thing: the Kavanaugh court will take on the administrative state.
Recently, I received an email from the Pacific Legal Foundation that their hopes are coming true. It is a comic tale of frogs, mice, and deep state overreach, but far from trivial for America’s future.
President Trump, we are often told, is not a principled man, certainly not a constitutionalist. These critics mistake a habit of abstract thinking for principles. President Trump has a patriotic grasp of the essentials. He ran on the promise to appoint top quality, conservative judges, and unlike the GOP political class, he takes pride in keeping his pledge to voters over donors. Trump used the constitutional experts at the Federalist Society to draft his list of candidates, unlike the politically safe Bush appointments, which irresponsibly added to the liberal court majority.
President Trump’s appointees, Justice Gorsuch and Justice Kavanaugh, are now showing their mettle.
With liberals dominating the federal agencies and the courts, the Environmental Protection Agency’s power has grown decade by decade—that is, until President Trump appointed these two strong constitutionalists to the Supreme Court. The EPA is on the front lines of this battle because its rulings directly impact private property and economic freedom.
Without property rights, we have no freedom. The founding fathers understood that private property is the boundary which limits the tyranny of state power. As David D’Amato wrote, the leftist assault on liberty preaches that private property is inherently unjust. The sanctity of your private property has no place in their dystopia of social justice under an all-powerful state.
Enter President Trump’s new conservative majority on the Supreme Court. In the very first case of the new term, the court, with Kavanaugh taking his seat, took on a seemingly comical case that goes to the heart of government overreach.
Constitutional Ground Zero
The Supreme Court, since 1984, has been guided by the precedent that administrative regulations are the specialized work of “experts,” creating the infamous “Chevron deference,” that gives federal bureaucracies the right to create rules with the force of law but not subject to judicial review.
Ordinary people victimized by federal regulations often find little recourse in the courts. The deep state gets away with no judicial limits to their power. This is rule without law.
Politicians take advantage of this unwise court deference by writing vague laws, seemingly uncontroversial, and pass on the writing of the concrete—and at times politically explosive—details to unelected bureaucrats. Bureaucrat diktats are set above the courts. Thus, the Supreme Court’s Chevron deference throws open a wide door to government action without accountability to voters.
The impact on America has been devastating. Flying in the face of everything our founders accomplished, judicial deference to the bureaucracy allows government power to grow unchecked. And grow it has. It has meant a diminishment of our liberty and our prosperity.
Robert Alt, head of the Buckeye Institute, told me that we now have 4,500 federal criminal laws, that is, laws passed by Congress. That may sound like a lot but compare it to the 300,000 federal regulations written by unelected administrators. Bureaucratic rules are not insignificant when they carry criminal penalties. These 300,000 regulations are more powerful than any law, because no one is politically responsible for them, and the courts rarely review them.
The EPA is ground zero in the constitutional battle surrounding the rule of law, balance of powers, and limits on powers. Activists at the EPA hide behind the respect we give to scientists and our desire to protect nature and human health. They take popular, important safeguards, and pervert them into unscientific, unfair, and undemocratic power grabs. The EPA’s abuse of the Endangered Species Act is a power tool in the liberal shed that seeks to diminish property rights and limit economic activity.
Fighting a Mythical Jumping Mouse
The Pacific Legal Foundation emailed happy news about their victory against administrative overreach, “The U.S. Supreme Court gave PLF client Edward Poitevent—and all Americans—another huge reason to give thanks.”
The federal government designated this farmer’s private property in Louisiana a critical habitat for a threatened frog that does not—and cannot—even live on his farm. This species of frog hasn’t been seen in Louisiana for 50 years. Biologists stated it couldn’t live on his property even if someone put it there.
The new Supreme Court reached a unanimous decision that the EPA does not have authority to extend the definition of critical habitat to absurdity. The importance of the case is that the Court judged the issue at all. It is a significant step in taking back the power of review over the Deep State. This goes beyond the particular justice done for a single farmer facing down the EPA.
Justices Gorsuch and Thomas have signaled they view Chevron deference as unconstitutional. Joined by Kavanaugh, they are exerting a leadership role on the court.
The non-existent frog is not alone. In cahoots with activist environmental groups, the EPA has been able to define critical habitat where the endangered species does not exist and could not exist in many places, precisely in order to deprive citizens of the free enjoyment and value of their private property.
The Pacific Legal Foundation is taking on the Preble’s Jumping Mouse as the next stage in this battle.
Twenty years ago, the EPA undertook to protect a mouse subspecies at the behest of activists fighting development in a broad area south of Denver. DNA studies show the Preble’s Jumping mouse never has existed. There is no such distinct genetic subspecies.
Yet the EPA forced ranchers in Wyoming, hundreds of miles away and where even alleged Preble’s Jumping mice were never found, to do mitigation. The U.S. Fish and Wildlife Service estimates the price tag to ranchers has topped $200 million. These are not rich folks with extra money lying around in bank accounts. If PLF prevails, they will get relief. The frog case should help them.
A New Era of Constitutional Limits
Cases like this go far beyond the actions of the EPA. The untouchability of liberal rulings from the bench are based on precedence and deference. Precedence and deference shelter the unconstitutional New Deal expansion of the commerce clause to allow federal regulation of all economic activity. They also shelter Roe v. Wade.
Changing the court’s application of precedence and deference, as in the Louisiana frog case, is a building block of constitutional reform. Justices Roberts and Kavanaugh are conservative in that they make narrow rulings, try to avoid big public controversies, and build up new precedents case by case. We will not see overnight revolutionary changes. We will see a gradual restoration of constitutional limits on the government.
The assessment of their Louisiana frog victory by the Pacific Legal Foundation is jubilant: “The takeaway is a very clear, severe message the justices sent to government agencies intent on abusing their administrative powers: stop exploiting your power!”
The task will take time, but we should note and celebrate that we are on the way. Victories like this are essential if we wish to return to a nation of free enterprise and liberty.
None of this is academic. Fake frogs and imaginary mice have been powerful weapons against property rights and freedom. We are battling for constitutional rule once again. Our new conservative majority on the Supreme Court has used a small frog to take a small, but hopeful, step to restore legal limits on the power of Big Government.
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