Report
No. 1:
U.S.
Supreme Court Rejects Obama Administration DOJ’s Expansive View of Federal
Power
By
U.S. Senator Ted Cruz (R-TX), Ranking Member, Senate Judiciary Subcommittee on
The Constitution, Civil Rights and Human Rights
The
Obama Administration, through its Department of Justice, has repeatedly
advocated a radical theory of sweeping federal power. The Administration’s view of federal power is so extreme
that, since January 2012, the U.S. Supreme Court has unanimously rejected DOJ’s
arguments for more federal power six times. Notably, four Justices who were nominated by
Democratic presidents denied the Obama Administration’s overreaches— President
Obama picked two of them himself. As Ilya Shapiro noted in The Wall Street
Journal on June 5, 2012:
“When the administration
can’t get even a single one of the liberal justices to agree with it in these
unrelated areas of law, that’s a sign there’s something wrong its
constitutional vision.”
If
Obama’s Department of Justice were successful in its cases the federal
government would have the power to:
1.
Attach GPSs to a citizen’s vehicle to monitor his movements, without having any
cause to believe that a person has committed a crime (United States v. Jones);
2.
Deprive landowners of the right to challenge potential government fines as high
as $75,000 per day and take away their ability have a hearing to challenge
those fines (Sackett v. EPA);
3.
Interfere with a church’s selection of its own ministers. (Hosanna-Tabor
Evangelical Lutheran Church & School v. EEOC);
4.
Override state law whenever the President desires. (Arizona v. United States);
5.
Dramatically extend statutes of
limitations to impose penalties for acts committed decades ago. (Gabelli v.
SEC); and
6.
Destroy private property without paying just compensation. (Arkansas Fish
& Game Commission v. United States).
The
arguments advanced in these cases demonstrate an astonishing view of federal
power on behalf of the Obama Administration, worthy of further examination.
If
the Department of Justice had won these cases, the federal government would be
able to electronically track all of our movements, fine us without a fair
hearing, dictate who churches choose as ministers, displace state laws based on
the President’s whims, bring debilitating lawsuits against individuals based on
events that occurred years ago, and destroy a person’s private property without
just compensation. Luckily, we do not have to live in that America. The
framers of our Constitution created the separation of powers to ensure that
judicial power checks executive power. And, the U.S. Supreme Court did just
that when it unanimously rejected the Obama Administration’s far-reaching
positions in these six cases decided in just over the past year. Below
are summaries of those six cases:
United States v. Jones, 132
S. Ct. 945 (2012):
OBAMA ADMINISTRATION SEEKS
POWER TO ELECTRONICALLY TRACK AMERICANS WITHOUT CAUSE, INVIOLATION OF THE
FOURTH AMENDMENT
In
United States v. Jones, DOJ attempted to secure carte blanche authority
to monitor the public movements of anyone, at any time, without providing any
reason at all. DOJ sought the right for the government to attach a Global
Position System device to a vehicle and monitor its movements without cause,
unsuccessfully arguing that the Fourth Amendment, which protects Americans from
unreasonable search and seizure, does not extend to electronic tracking
devices. The President’s lawyers stated that the information collected by a GPS
system is already in public view and a person should not expect it to be
private. Thus, according to DOJ, police could attach a GPS to a car and monitor
its movements in public without a search warrant or any cause to believe a
crime would be committed. The Supreme Court unanimously overruled DOJ’s
Orwellian position — all nine Justices agreed that a search occurs when police
attach a GPS to a car and monitor its movements.
Sackett v. EPA, 132
S. Ct. 1367 (2012):
OBAMA ADMINISTRATION
ATTEMPTS TO SEVERELY CURTAIL PROPERTY RIGHTS WITHOUT GIVING CITIZENS PROCESS TO
CHALLENGE EPA
In
Sackett v. EPA, DOJ sought to prevent a landowner from challenging
Environmental Protection Agency orders and fines.
The
EPA’s Clean Water Act, which prohibits the discharge of pollutants into “the
waters of the United States,” was at the center of this dispute.
If
EPA believes someone is violating this provision, the agency can issue an
administrative order requiring the property owner to remedy the problem, and
then file a lawsuit if the owner doesn’t comply with the order.
And,
when EPA issues a compliance order and then prevails in a subsequent lawsuit,
the property owner can be fined up to $75,000 per day. The Sacketts owned
a 2/3-acre residential lot in Idaho, where they wanted to build their dream
home.
The
lot was north of a lake, but separated from the lake by several lots that
already had buildings on them. Before constructing their new home, the
Sacketts filled part of their lot with dirt and rock, prompting the EPA to
claim the Sacketts forced pollutants into the nearby waterway. EPA stated the
Sackett’s property was within its jurisdiction because it was “adjacent” to
“navigable water.”
EPA
then issued a compliance order to the Sacketts, directing them to restore the
lot, give EPA access to the lot, and provide EPA with records about the
property.
The
Sacketts wanted to challenge EPA’s order as exceeding its authority, especially
since they were facing potential fines of $75,000 per day. They asked EPA for a
hearing and EPA denied the request. The Sacketts then filed a lawsuit against
the EPA in federal district court. But, DOJ argued that the Sacketts could not
challenge the EPA’s compliance order until EPA filed a lawsuit against the
Sacketts to enforce the order. According to DOJ, “EPA’s discretion to determine
when and whether suit should be filed, and its ability to use the
compliance-order mechanism for its intended purpose, would be substantially
undermined if compliance-order recipients could immediately hale the agency
into court.”
DOJ
effectively wanted to put the Sacketts into a Catch-22: either the Sacketts
complied with the EPA order or they faced fines of up to $75,000 per day while
waiting for EPA to sue. The Court unanimously rejected DOJ’s outlandish
argument. The opinion observed that “the Sacketts cannot initiate [a civil action
brought by EPA], and each day they wait for the agency to drop the hammer, they
accrue, by the Government’s telling, an additional $75,000 in potential
liability.”
The
Court went on to state, “it is hard for the Government to defend its claim that
the issuance of the compliance order was just ‘a step in the deliberative
process’ when the agency rejected the Sacketts’ attempt to obtain a hearing and
when the next step will either be taken by the Sacketts (if they comply with
the order) or will involve judicial, not administrative, deliberation (if the
EPA brings an enforcement action).”If DOJ had won its case, the EPA would be
able to extort settlements from Americans who don’t have the ability to
challenge these orders while they face fines of up to $75,000 per day.
Thankfully,
the Court stopped DOJ in its tracks.
Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. EEOC, 132
S. Ct. 694 (2012):
OBAMA ADMINISTRATION
SEEKS TO DENY CHURCH’S RIGHT TO SELECT MINISTERS UNDER THE FIRST AMENDMENT
In
Hosanna-Tabor v. EEOC, DOJ argued it had the right to oversee a church’s
choosing of ministers, a plain violation of the First Amendment. In one
stunning exchange with Justice Elena Kagan, a DOJ lawyer explained the administration’s
thinking. Justice Kagan asked, “Do you believe, Ms. Kruger, that a church
has a right that’s grounded in the Free Exercise Clause and/or the
Establishment Clause to institutional autonomy with respect to its employees?”
The
DOJ lawyer replied, “We don’t see that line of church autonomy principles in
the Religious Clause jurisprudence as such.”
Justice
Kagan — who was nominated by President Obama and had served as his former
Solicitor General — later remarked that it was “amazing” that DOJ believed that
“neither the Free ExerciseClause nor the Establishment Clause has anything to
say about a church’s relationship with its own employees.”
Indeed.
The
Court’s opinion unanimously rejected DOJ’s cramped reading of the First Amendment
and recognized the ministerial exception. Hosanna-Tabor explicitly
stated, “We cannot accept the remarkable view
that the Religion Clauses have nothing to say about a religious organization's
freedom to select its own ministers.”
Arizona v. United States, 132
S. Ct. 2492 (2012):
OBAMA ADMINISTRATION
SEEKS TO DISPLACE STATE LAW ANY TIME THE PRESIDENT DECLARES ENFORCEMENT
PRIORITIES
In
Arizona v. United States, DOJ tried to take away states’ rights to
create their own laws on the basis that the federal government had different
law enforcement priorities. Even though the Court did hold that federal
law preempted three out of four of Arizona’s immigration laws at issue in the
case, no Justice accepted DOJ’s theory that mere federal enforcement priorities
— as opposed to federal statutes passed by Congress or regulations enacted by
federal agencies after public participation — trumped state law. Under
the Supremacy Clause, a state law can be preempted when a state law is in
“conflict with federal law” on the basis that “compliance with both federal and
state regulations is a physical impossibility” or the state law “stands as an
obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.”
In
Arizona v. United States, DOJ tried to concoct a new form of preemption:
“Federal enforcement-discretion preemption.”
Meaning,
when government has discretion to choose whether to enforce certain federal
laws, the states are categorically prohibited from enacting their own laws as a
backup mechanism for enforcing existing federal laws.
None
of the Justices accepted DOJ’s far-reaching argument. The majority found
three of the four challenged state laws preempted, but on the basis that
existing congressional statutes — not executive enforcement priorities —
preempted these state laws.
All
three dissenting Justices similarly rejected DOJ’s enforcement-priority theory
of federal preemption as well.
Had
the Court accepted DOJ’s new theory of preemption, the federal government would
have drastically expanded its authority to wipe out state law based on the
whims of the executive branch.
Gabelli v. SEC, 133
S. Ct. 1216 (2013):
OBAMA ADMINISTRATION
SEEKS TO EXPAND GOVERNMENT POWER TO PUNISH CITIZENS
In
Gabelli v. SEC, DOJ argued it had the discretion to impose severe
penalties on Americans based on events that happened years, or even decades,
earlier. The Investments Advisers Act of 1940 authorizes the Securities and
Exchange Commission (SEC) to seek civil penalties against an investment adviser
who defrauds a client. But the SEC must generally do so under the statute of
limitations provision that applies to many other government penalties. This
statute of limitations requires the government to bring a civil enforcement
action “within five years from the date when the claim first accrued.”
In
this case, DOJ argued that the “discovery rule” exception should apply – that
is, this five-year statute of limitations should not begin to run until the
government discovered, or could have reasonably discovered, the alleged
fraud. The Court found that DOJ’s invocation of the discovery rule was
misplaced.
Gabelli said “we have never
applied the discovery rule in this context, where the plaintiff is not a
defrauded victim seeking recompense, but is instead the Government bringing an
enforcement action for civil penalties.”
The
Court also posited that the government “is
not like an individual victim who relies on apparent injury to learn of a
wrong,” but is rather constantly investigating potential violations with “many
legal tools at hand to aid in that pursuit.”
Additionally,
it noted government suits “involve penalties, which go beyond compensation, are
intended to punish, and label defendants wrongdoers” and that “the SEC as
enforcer is a far cry from the defrauded victim the discovery rule evolved to
protect.”
Had
DOJ prevailed, the federal government would have gained significant new
authority to punish citizens by manipulating the intention of a law intended to
protect defrauded citizens, not government regulatory agencies.
Arkansas Fish & Game
Commission v. United States, 133 S. Ct. 511 (2012):
OBAMA ADMINISTRATION
SEEKS TO VIOLATE PRIVATE PROPERTY PROTECTIONS
In
Arkansas Fish & Game Commission,
DOJ attempted to take property away from citizens without just
compensation. The case begins with a
decision by the U.S. Army Corps of Engineers to release water from a dam at a
slower than usual rate. This gave downstream farmers a longer harvest time, but
it also resulted in an extended period of flooding for a particular wildlife
and hunting preserve that is used a timber resource. The owners of the preserve sued the federal
government, alleging a temporary taking of their property without just
compensation. The trial court found that “the Corps’ deviations caused six
consecutive years of substantially increased flooding,” which resulted in a
temporary taking that destroyed or degraded “18 million board feet of timber.”
DOJ
argued that the government should be able to flood land, on a temporary basis,
and not pay property owners just compensation for damage caused by the
flooding. But the Court unanimously scuttled DOJ’s theory and found no reason
to create a “temporary-flooding exception” to the Takings Clause.
In fact, the Court
said the ‘parade-of-horribles argument’ advanced by DOJ was overblown:
‘Time and again in Taking
Clause cases, the Court has heard the prophecy that recognizing a just
compensation claim would unduly impede the government’s ability to act in the
public interest. We have rejected this argument when deployed to urge
blanket exemptions from the Fifth Amendment’s instruction. While we
recognize the importance of the public interests the Government advances in
this case, we do not see them as categorically different from the interests at
stake in myriad other Takings Clause cases.’
If
the Court accepted DOJ’s arguments, the federal government would have the
ability to tamper with a private citizen’s property without paying just
compensation.
The
Takings Clause, on its face, rejects this position, which is precisely why the
Supreme Court unanimously denied DOJ’s effort to expand federal authority at
the expense of individual rights.
* * *
When President Obama’s own Supreme Court nominees join
their colleagues in unanimously rejecting the Administration’s call for broader
federal power six times in just over one year, the inescapable conclusion is
that the Obama Administration’s view of federal power knows virtually no
bounds.
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