Friday, September 22, 2006

The Chief Justice and "Generous" Deference

Mark Moller over at Cato wrote up a little analysis(PDF) of the Rapanos v. U.S. decision(PDF), the newest battle in the fight over what wetlands can be properly regulated by the Feds because of their interstate nature. Roberts in his concurrence hints that if the EPA will just lay down some consistent rules about the scope of its authority, the Court will give them "generous" deference. So now we're letting agencies decide what they can do under the interstate commerce clause? Deference is for agency decisions about matters that fall within their jurisdiction, not for agency decisions about the scope of their jurisdiction. Otherwise we end up in a situation where the commerce clause is being interpreted not by the Court but by the EPA, with the Court just standing by to make sure they aren't too far off.

Every time we appoint a conservative justice, I offer up a little prayer to the gods of common sense that he or she will be a federalist of some persuasion. Alas, I am often disappointed.


Orrin Johnson said...

I think you're mischaracterizing what Roberts said. The law is well settled that Admin. Agencies enjoy wide deference so long as their policies are consistent with their Congressional mandate. Roberts not only rhetorically asked for consistency within the USACE regulations, but between their regs and the authorizing statute. But then he says that because the Corps went out of the bounds Congress had set, their assertion of jurisdiction was improper.

Roberts is showing deference to the political branches, as he should.

This is a victory for Less-Big Government (if only I could call it "small"), as is a great example of why judicial nominations as a campaign issue matter. Had Bork not been Borked, Scalia's very correct opinion would be the precedent. Unfortunately, because of Justice Kennedy, the Big Government liberal admin law lovers will continue to feel free to push their regulatory authority to absurd levels.

Thank God Kerry didn't win the last election. If you were disapointed with this outcome, imagine it with two more Ginsbergses or Stevenses on the bench. The USACE could have regulated the number of sips per minute you could have taken off of an Evian bottle.

PubliusRex said...

I wouldn't write off Roberts yet. I understand your disappointment, but look, he's been on for just one year. Remember that law is an incremental process - judges decide cases, not issue sweeping proclamations.

Also, this is a second best grounds on which to attack the administrative agencies. Their very existence rests on dubious grounds under the constitution. If the court is going to get into throwing out bad decisions, the first place to start would be in questioning the legitimacy of independent agencies...and of course the worst of the worst, Roe, Lawrence, etc.

One other thing - nowhere does the constitution say that the Supreme Court is the sole think tank on the constitution. All three branches have important roles in interpreting the constitution - afterall, you cannot execute the law without interpreting it. It would be tyranny were the executive, for example, to have to wait for court decisions BEFORE acting.