In its unanimous decision yesterday in Sackett v. EPA, the Supreme Court’s communicates more than a little exasperation with its co-equal branches of government. Justice Alito’s concurrence is an outright broadside attacking Congress for failing over decades to clarify the scope of the Clean Water Act which enabled the Executive Branch in the form of an arrogant EPA to employ what Justice Scalia in the majority opinion describes as the “strong-arming of regulated parties”.
The language used in Sackett is both sarcastic and highly personalized. In a sentence dripping with sarcasm, Justice Scalia notes that EPA’s order concluding that there was a violation of the Clean Water Act constituted the end of EPA’s administrative deliberation; however, he goes on to comment snidely: “the agency may still have to deliberate over whether it is confident enough about this conclusion to initiate litigation, but that is a separate subject.” Significantly, in the opening salvo of his Concurring Opinion, Justice Alito speaks not of EPA but of EPA’s employees – “[the federal government’s position] “would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees”. Justice Alito’s reference to the EPA’s employees personalizes the point. This is not a case about the correctness of EPA’s policies; it’s a case about government employees not behaving consistent with fundamental American values.
In the end, Sackett represents a defense of the judiciary’s central role in our democracy from encroachment by Congress and the Executive Branch. As Justice Scalia noted, the Executive Branch’s power to regulate does not trump the judiciary’s right to review: “The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.” While the Court stopped short of constitutionalizing its decision in Sackett, it’s hard not to read between the lines that the judiciary will not sit quietly by while administrative agencies attempt to block judicial review of their coercive tactics against regulated parties.