Constitutional Law, Exclusives, Politics, Rob Natelson

Natelson: Supreme Court just helped out the Real Colorado

Here is something you might not realize if you never venture outside the Denver-Boulder metroplex or if you are part of the state’s benighted “progressive” ruling class: Colorado is not Massachusetts or New York.

Most of the state is economically and culturally part of the American West. Traditionally, that’s the Real Colorado.

People in the Real Colorado, like people in Montana, Idaho, Utah, and other Western states, largely live off the land. Farming, ranching, mining, hydrocarbons, and tourism are central to the economy. Those who live in the Real Colorado, like those in other Western states, share the individualism and traditional values the “progressive” crowd would delight to destroy.

Folks in the Real Colorado don’t get many breaks these days, but the US Supreme Court just gave them one.

It was the decision in Loper Bright Enterprises v. Raimondo, which pulled the plug on the infamous “Chevron Doctrine.”

The Chevron Doctrine

The Chevron Doctrine was one of the fig leafs that 20th century liberal activist Supreme Court majorities used to pretend the federal administrative state is somehow constitutional. Here’s the background:

The Constitution grants Congress power “to regulate Commerce … among the several States.” By “Commerce” the Constitution means mercantile trade and a few associated activities. Other economic activities, particularly those involving land within state boundaries, are not “Commerce” as the Constitution uses that word. Regulating such matters was reserved almost exclusively to the states—that is, to governments closer to the people than the distant Washington, D.C. establishment.

During the years 1787 to 1790, Americans debated whether the Constitution should be ratified. The document’s advocates emphasized repeatedly that the proposed Constitution limited the economic power of the federal government. Only the states could regulate in-state land transactions, agriculture, mining, and other forms of land use. These representations were confirmed by the Ninth and Tenth Amendments.

Beginning around 1940, however, liberal Supreme Court majorities stopped enforcing those limitations on federal power. The court pretended that “Commerce . . . among the several States” meant “the entire economy.”

The result was a bonanza for federal politicians. They reveled in their new-found power and passed laws on almost every conceivable subject. Eventually, even your personal toilet became subject to federal regulation.

But the politicians who so enjoyed inflicting laws on the rest of us couldn’t be bothered monitoring those laws. So they passed statutes creating administrative agencies and granting those agencies vast powers.

Yet even those vast powers were limited. When agencies attacked Western land owners and land users, the victimized citizens sometimes went to court to argue that the agency was exceeding its statutory authority.

Well, we can’t have that! So in 1984, yet another liberal Supreme Court majority issued what became known as the “Chevron Doctrine.” It said that in most cases, an agency is the judge of its own authority. If there was any basis for the agency’s conclusion—even if the conclusion was wrong—the judicial branch would abdicate and let the agency rule in its own favor.

Agency abuse

What followed was, in the words of the Declaration of Independence, a “long train of abuses.” Federal agencies invaded the jurisdiction of the states to assault Western property owners.

A good example was on the Supreme Court docket last year: Sackett v. Environmental Protection Agency (EPA). In that case, an Idaho couple (the Sacketts) had decided to backfill their land, but the EPA ordered them to reverse the process.

As a constitutional matter, this land use issue should have been one for Idaho state officials—not for the federal government. But the EPA claimed jurisdiction as part of its authority over “navigable waters.”

There was no water—navigable or otherwise—on the Sacketts’ land. But that didn’t bother the federal bureaucrats. The EPA argued that—

  1. The Sacketts’ lot lay beside a 30-foot-wide road;
  2. on the other side of the road was a non-navigable water ditch;
  3. the ditch flowed into a non-navigable creek;
  4. the non-navigable creek flowed into Priest Lake;
  5. although Priest Lake is located wholly within the State of Idaho and is not a trade route, tourists sometimes used it; so
  6. the EPA had designated the lake as “navigable,” and therefore
  7. the EPA had jurisdiction over the backfilling of a lot 30 feet away from a non-navigable ditch entering into a non-navigable stream entering into an isolated lake that was “navigable” because the EPA had declared it so.

All of this might sound like a joke. But the EPA’s threat to fine the Sacketts up to $40,000 per day certainly was no joke.

What the Supreme Court just did

Last year’s case of Sackett v. EPA has a happy ending. The Supreme Court unanimously told the feds to back off.

But farmers, ranchers, and other land owners still could fear the feds would come for them next. At any time, land owners might be subjected to obliterating financial penalties for draining a mudhole or being insufficiently kind to some federally-favored species.

In the Loper Bright case, the Supreme Court reduced the threat. By discarding the Chevron Doctrine, the court assured that when the Deep State attacks a citizen, the citizen will have more of a fighting chance.

At least if it looks like the agency exceeded its legal authority, that question now will be tried by a court—not by the agency itself.

Rob Natelson is Senior Fellow in Constitutional Jurisprudence at the Independence Institute and a former constitutional law professor at the University of Montana. He is the author of “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015).


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