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June 19, 2020 by William Buzbee

The Supreme Court's DACA Decision, Environmental Rollbacks, and the Regulatory Rule of Law

On June 18, the U.S. Supreme Court struck down the Trump administration's rescission of the Obama administration's immigration relief program known as Deferred Action for Childhood Arrivals (DACA). In explaining and then defending its DACA rollback, the Trump administration had raised an array of claims that, if accepted, would have undercut numerous regulatory rule of law fundamentals. Instead, the Court strengthened these longstanding requirements. Department of Homeland Security (DHS) v. Regents will become central to battles over the many Trump administration rollbacks and reversals of environmental and other regulations.

In the Trump DACA rescission, the administration relied heavily on an argument it has often deployed to justify regulatory rollbacks. It claimed that the Obama administration DACA policy was so legally flawed that the Trump team had no choice but to reverse the policy. And in this DACA rescission, like many of its environmental regulatory rollbacks, the Trump regulators provided little more than conclusory analysis of reliance interests flowing from the earlier action and similarly skimpy analysis of effects of the new actions. Similarly flawed approaches combining new disavowals of legal authority with skewed and often conclusory analysis of effects are especially evident in climate deregulatory actions and the "waters …

June 2, 2020 by Katlyn Schmitt
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In April, the U.S. Supreme Court finally weighed in with an answer to a longstanding question about what kinds of pollution discharges rise to the level of a "point source" and require a permit under the Clean Water Act. The Court dipped its toes into some muddied waters, as this question has been the subject of a range of decisions in the lower courts for decades, with little consensus. Panelists on the Center for Progressive Reform's May 28 clean water webinar examined the Supreme Court's opinion and its possible implications for water quality protections.

Maui sewage discharge map

The Clean Water Act prevents the addition of any pollutant to any navigable water of the United States from any so-called "point source" – a fixed point, as in, for example, the end of a pipe discharging into a river – without a National Pollutant Discharge Elimination System (NPDES) permit. Generally speaking, the EPA …

May 11, 2020 by John Echeverria
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Anyone following the news about the coronavirus knows about the vocal opposition by libertarians and other right-wing extremists to government measures designed to control the pandemic. On television, the coverage has focused on angry, gun-toting protesters. But there's another avenue of opposition to the virus-related safeguards, one that's less photogenic but no less divorced from reality. In recent weeks, a number of land and business owners have filed lawsuits claiming stay-at-home orders and business closings represent “takings” of private property under the Fifth Amendment to the U.S. Constitution. These takings claims should be – and likely will be – rejected based on firm U.S. Supreme Court precedent.

In the absence of clear direction from the Trump administration, states have been left largely to themselves to devise emergency rules designed to “flatten the curve’” of new coronavirus cases and reduce the toll of sickness and death. Most states …

May 7, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

If we get a vaccine against a national epidemic, could Congress pass a law requiring everyone to get vaccinated? That very question was asked during the Supreme Court argument in the 2012 constitutional challenge to Obamacare’s individual mandate. The lawyer challenging Obamacare said, “No, Congress couldn’t do that.”

What’s shocking is that this may have been the correct answer. Conservatives on the Supreme Court have curtailed Congress’s ability to legislate about anything other than economic transactions, and an epidemic is not an economic transaction.

The 2012 oral argument in the Supreme Court

JUSTICE BREYER: I’m just picking on something. I’d like to just — if it turned out there was some terrible epidemic sweeping the United States, and we couldn’t say that more than 40 or 50 percent . . . — you’d say the Federal …

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CPR HOMEPAGE
More on CPR's Work & Scholars.
June 19, 2020

The Supreme Court's DACA Decision, Environmental Rollbacks, and the Regulatory Rule of Law

June 2, 2020

Clean Water Webinar Spotlight: Lessons Learned from the Supreme Court's Maui Decision

May 11, 2020

The Coronavirus and the Takings Clause

May 7, 2020

The Coronavirus and the Commerce Clause