Harry Reid’s decision to end the judicial filibuster of nominees for U.S. courts of appeals may have paved the way for Republicans to confirm Justice Gorsuch by ending the same practice at the Supreme Court level. But that doesn’t mean Reid’s decision isn’t paying off for the left.
In fact, it’s paying off with some regularity at the U.S. Court of Appeals for the District of Columbia Circuit, the second most important court in the country. Reid used the “nuclear option” to put three left-wing judges on that court, which often passes on the legality of actions taken by the administrative state.
Earlier this month, Reid’s ploy paid off big time when a panel of the D.C. Circuit ruled by a 2-1 vote (with one of the two votes cast by a judge Reid got on the court via the “nuclear option”) that the EPA can’t stay its own rule pending review. Say what?
The ruling prompted a friend with at least three decades of experience practicing administrative law to say: “Administrative law is a sick joke.” Another friend with just as much experience in the field or more responded: “How does it feel to have devoted your whole adult life to a profession that is little more than a sham?”
My friends are not exaggerating.
The case involved an Obama-era rule forcing oil and gas drillers to slash methane emission. In April Scott Pruitt, the new EPA Administrator, announced that the agency would reconsider the rule and stay its implementation for 90 days.
This is obviously something the head of an agency can do. The case for doing it was made all the stronger by the fact, noted by the Wall Street Journal, that the Obama EPA included provisions in the final rule that weren’t in the proposed version and thus weren’t open to public comment.
Yet Judges David Tatel and Robert Wilkins (one of the judges Reid packed the court with) blocked the administrator’s stay, thereby imposing Obama’s rule. They did so even as they acknowledged that the court can only review “final agency actions” and that the EPA’s decision to reconsider the rule is not final. Somehow, they contrived to conclude that the decision to reconsider is really a decision to revoke.
The phrase “you can’t make this stuff up” seems appropriate. Except that these two judges did.
Judge Janice Rogers Brown dissented, on the theory that a temporary stay is, you know, temporary — not final. “Hitting the pause button,” she noted “is the antithesis of ending the matter.”
Feeling the need to demonstrate further that black is not white, she added:
The Court presumes a certain outcome from EPA’s reconsideration, one that a stay along gives us no basis to presume. A stay is, of course, “final” as to whether one must comply with the rule during reconsideration. . . .[This] does not render it “final.” If it did, every interlocutory action that leaves compliance to the discretion of the regulated party would justify judicial review.
The stay is “essentially” nothing but a stay, and it does not qualify as “final agency action” under the two-part inquiry set forth by the Supreme Court.
As the Wall Street Journal’s editors point out, the panel’s claim that courts are the final arbiters of when a federal agency can stay its own rules pending reconsideration has clear implications for other Obama regulations that the Trump Administration is now reviewing. These include net neutrality at the Federal Communications Communication and the Education Department’s gainful-employment rule for colleges.
Indeed, warns the Journal, we can expect a deluge of such lawsuits brought by leftist lawyers now that judges in the D.C. Circuit have joined their brethren in the Fourth and Ninth Circuits as part of the anti-Trump “resistance.”
The Supreme Court needs to slap down this example of judicial lawlessness, as it did, in part, when it reversed the Fourth and Ninth Circuits in the travel ban cases. However, the Court won’t sit again until October and may not be able to rule on this matter until next year.
In the meantime, oil and gas drillers may find themselves incurring new costs and experiencing unnecessary uncertainty thanks to the D.C. Circuit’s “black is really white” decision.