The close of the Supreme Court’s term at the end of June came with massive victories against judicial activism and in favor of constitutional originalism and, as they prepare for the upcoming docket, attorneys defending individual rights are promising more “fireworks” in the name of liberty.
Writing for The Hill, James Burling and Alison Somin of the Pacific Legal Foundation (PLF) previewed some of the cases SCOTUS will be hearing in the coming weeks after decisions on the Second Amendment and, most notably, Roe v. Wade pushed back on progressive overreach. Despite a move from “guns and abortions this term,” they wrote, “there will be fireworks on issues ranging from race preferences at colleges, to…politically correct bacon regulations” and “continuing questions over the fundamental nature of government.”
Following Wednesday’s opening conference ushering in the freshmen term of Justice Ketanji Brown Jackson, oral arguments will begin the Monday after and PLF will be in the thick of it as they represent Mike and Chantell Sackett in their ongoing battle against the Environmental Protection Agency (EPA).
The overly broad definition of the agency as to what constitutes a wetland has prevented the Sacketts from moving forward with the construction of a home on property they own in 2007, despite having all the necessary local permits, because the EPA claimed the property was under their legal authority because of “navigable waters.” Would they have continued development, the owners would have faced tens of thousands of dollars worth of fines per day and only now will their case be presented before the Supreme Court as the Sacketts’ attorneys challenge the inconsistent definition of a wetland in hopes to “simply restore proper limits” to the EPA’s power.
Another case where progressives have attempted to impose their agenda on others comes out of California where in 2018 voters helped pass Proposition 12 which went into effect this year making it an offense to sell pork products from importers raising pigs in pens deemed undersized. The punishment includes a potential fine of up $1,000 and as many as 180 days in prison for a state that imports 99.87 percent of its pork.
PLF offered an amicus brief in the case of National Pork Producers Council v. Ross and wrote in part, “Allowing states to leverage their market power to reach beyond their borders and control activity that is properly the subject of direct regulation by other states undermines the basic principles of federalism on which this nation was founded.”
“And,” they continued, “it does so in a manner that leaves the invaded states with no legal or political recourse.”
The case relies heavily on the understanding of the so-called “Commerce Clause” from Article 1, Section 8 of the U.S. Constitution that authorizes Congress “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
Should the court rule against California’s regulatory efforts, the decision would likely impact a large swath of the progressive haven’s attempts at controlling how the individual states conduct their business.
Other cases coming to the court include: Students for Fair Admissions v. Harvard considering the woke admissions policies that have been negatively impacting Asian students; Axon Enterprise v. Federal Trade Commission and Securities and Exchange Commission v. Cochran that hold the core question “Can courts hear constitutional challenges involving an administrative agency’s structure immediately, or must such claims first percolate internally through the administrative agency?” and namely the separation of powers as Burlin and Somin note, “To vindicate individual rights that are threatened by unconstitutionally structured administrative agencies, courts should be able to hear these challenges.”
In other words, unelected bureaucrats should not be allowed to manipulate regulations at their own behest with congressional approval and any attempt to do so should be challenged in court.
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