- - Thursday, August 30, 2018

The current U.S. Supreme Court vacancy has Americans debating the role of the judiciary in our democracy. Battle lines have been drawn by those who want activist judges legislating right and wrong from the bench and those of us who understand that the constitution prescribes a balance of powers that prohibits the courts from creating rights and privileges in place of Congress.

It’s an age-old struggle that ebbs and flows. As we look toward the Senate confirmation hearings for Judge Brett Kavanaugh in September, this issue will be front and center in the public debate.

Occasionally, a decision comes along in which a court obviously operates outside its intended role. These rare circumstances are generally so egregious they make all kinds of headlines. Which is why the relative hush around the 9th U.S Circuit Court of Appeals’ 2-1 decision in early August in LULAC v. Wheeler is so vexing.

In that decision, the majority essentially ordered the Environmental Protection Agency (EPA) to ban the commercial use of a pesticide called chlorpyrifos. In 2000, the EPA banned the household use of chlorpyrifos but also determined that the insecticide could be used commercially in safe quantities. This has been the EPA’s position throughout the presidencies of George W. Bush and Barack Obama. In other words, the science behind its safety was sufficient to convince regulators from successive Republican and Democratic administrations.

And yet it was insufficient for unelected judges on the 9th Circuit with no scientific training.

In this case, the court acted in a manner that negatively affects farmers’ ability to manage pests and their rights to challenge the loss of use of the most widely used pesticide in the country, violates the due process rights of the registrant, and impinges upon the ability of the Executive Branch to implement the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and Federal Food, Drug, and Cosmetic Act (“FFDCA”) as enacted by Congress, the body entrusted by the framers with making the laws.

Eighty-percent of 9th Circuit decisions reviewed by the U.S. Supreme Court are overturned. This decision makes it easy to see why. The ruling is an unprecedented over-reach in the power of the judiciary. The panel did not simply remand the case to the Executive Branch with orders to reconsider part of its action, it ordered the Executive Branch to take specific regulatory action, some of which is in conflict with the very stature Congress enacted.

No court has ever ordered the EPA both to cancel uses and revoke tolerance levels for a pesticide. Its significance goes beyond just Chlorpyrifos and threatens the established regulatory process for all crop protection tools established by Congress.

Judge Ferdinand Fernandez, in his dissent, argued that the court had no jurisdiction over the matter.

“Congress was very careful and very specific about the class of cases — the limited kind of orders — over which it wished to give the courts of appeals direct review,” he wrote. “It made it plain that we could not review the EPA’s actions in this specific area until the agency had developed and considered a full record regarding objections and the like. Before that occurred, judicial review was not available; we had no authority whatsoever to consider the issue.”

What he’s getting at is that the EPA was still considering objections raised over the safe tolerance levels of chlorpyrifos permitted for commercial use when the 9th Circuit inserted itself and ordered the EPA to ban it.

The court’s decision is entirely contrary to the constitutional separation of powers as judicial review of matters still pending before an Executive Branch agency encroaches on that agency’s role as provided for in statute by Congress. In this case, the EPA is the expert agency charged, in the first instance, with considering whether the issues raised in the objections warrant the relief sought in the administrative petition. The decision interfered with the framework Congress specified in enacting FIFRA and the FFDCA and the court acted without regard to — indeed, with disregard toward — the EPA’s analysis and fully developed administrative record.

The 9th Circuit’s decision in LULAC v. Wheeler cannot be allowed to stand. It is the very essence of the type of judicial activism and legislating from the bench that those of us trying to instill a more conservative judicial temperament in our judiciary must stand up and fight against. It would permanently alter the relationship between the three branches of the U.S. government by disregarding the laws enacted by Congress granting regulatory authority to the Executive Branch.

Why have separation of powers at all when the court usurps all the power? Why have checks and balances when the court just puts its thumb on the scale? The Trump administration must see that this decision does not go unchallenged.

• James Skyles is a Chicago-based lawyer and CEO of M2M Legal.

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