- The Washington Times - Wednesday, March 28, 2012


Michael and Chantell Sackett wanted to build a house on some land they owned a few blocks from Priest Lake in Bonner County, Idaho. Little did they know at the time that their efforts would attract the attention of Environmental Protection Agency (EPA) regulators and ignite a national discussion on the Obama administration’s regulatory strong-arm tactics.

The Sacketts’ “violations” seemed benign: They filled a half-acre of wet land on their property with dirt and rock and began the building process. A few months later, they received a”compliance order” from the EPA demanding that they immediately restore the site in accordance with the EPA’s Restoration Work Plan or face fines of up to $75,000 a day.

The Sacketts asked the EPA for a hearing, as they did not believe their property was subject to EPA review. The Sacketts said their property was not adjacent to the lake, and the half-acre of wet land was not “navigable water” within the meaning of the Clean Water Act. They said the landfill they used, therefore, was not an “illegal discharge” into “navigable waters” banned by the Clean Water Act.

The EPA denied the request for a hearing, and a federal district court and the 9th U.S. Circuit Court of Appeals rejected their request for review of the policies that had deprived them of “life, liberty or property, without due process of law” in violation of the Fifth Amendment.

Having nowhere else to go, the Sacketts made a Hail Mary appeal to the Supreme Court. Amazingly, the court heard the case and on March 21 issued a rare unanimous decision ordering a review of what it called the EPA’s “strong-arming” tactics.

After reviewing the facts and the stretched definition the EPA gave to “navigable waterways,” the Supreme Court acted strongly and decisively. It reversed the lower courts’ refusal to act. The court rejected the Obama administration’s claims that, technically, the order was not final, as no fine had been issued. Instead, the court declared:

“[T]here is no reason to think the Clean Water Act was uniquely designed to enable the strong-armingof regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.”

This case is hugely significant, as it is a rare, unanimous rebuke to an overreaching federal government. That all nine justices, including two Obama appointees, would agree the administration was “strong-arming” is quite astounding. Moreover, that a unanimous court would reverse the action of two lower federal courts demonstrates a rather strong disconnect and serious emotional revulsion to the heavy-handedness of the administration in this case.

We can only hope this judicial rebuke of strong-arm regulators will extend beyond the EPA, as Obama administration regulators are consistently demonstrating the same kind of government strong-arming the EPA used in this case. The U.S. Fish and Wildlife Service sent 30 armed agents to raid a Tennessee Gibson guitar factory, taking inventory and property, apparently because some bureaucrat in a cubicle wrongly thought Gibson had violated another country’s laws, in spite of the fact that the other country, India, hadn’t been consulted. The National Labor Relations Board tried to give labor unions negotiating power by hassling the Boeing Co. for building a job-creating factory in South Carolina. Those examples are just the tip of the iceberg. According to the Heritage Foundation, the Obama administration has rushed through four times the amount of rules issued by the George W. Bush administration in the same amount of time.

The administration has thousands of bright, well-meaning ideologues passionate about social change, protective of the environment and eager to change the world. But they are doing it by strong-arming Americans and weakening our economy and liberty.

Finally, in the Sackett case, all nine justices of the Supreme Court spoke up together and said enough is enough. Strong-arming can be a violation of constitutional rights - even if it is not a technical violation of the law.

This unanimous decision should move President Obama to halt all intrusive federal rule-making until strong checks can be put into place to protect the spirit and principle of the Fifth Amendment right to due process. Such a move would be good for business, the economy and freedom.

Gary Shapiro is president of the Consumer Electronics Association and author of “The Comeback: How Innovation Will Restore the American Dream” (Beaufort Books, 2011).



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