Trust us, we’re the government, Obama administration tells Supreme Court [With Comment by John]

Earlier this month, the Supreme Court heard a case in which the Obama administration made the extraordinary claim that there can be no judicial review as to whether a government agency met a statutory prerequisite for filing a lawsuit. The case is Mach Mining v. EEOC.

The Federalist Society asked me to report on the case via audiotape. My report is here.

The Civil Rights Act requires the EEOC to negotiate an end to an employer’s alleged discrimination before it sues the employer. The process is called conciliation. Congress required concilation because it believed, sensibly, that informally resolving discrimination suits, if possible, is preferable to resolving them through litigation.

But when the EEOC wants to bring a big lawsuit, it will often blow off conciliation. In my experience, it will do so, for example, by presenting a monetary demand with no explanation for its derivation and then, when the employer asks for one, declare that conciliation has failed. Then, it will proceed directly to court.

Why does the EEOC do this? Because the results of conciliation must remain confidential, and the EEOC wants the publicity that will come with the settlement of a lawsuit (or a victory in court).

When the EEOC behaves this way, the employer often will assert as a defense to the lawsuit that the EEOC failed to meet its statutory obligation to conciliate. For four decades, this has been a defense that courts would assess — typically under a standard that is deferential to the EEOC. If a court finds that the EEOC failed to meet its obligation, typically the EEOC will then engage in real conciliation, as Congress intended. If conciliation then fails, the case will proceed on the merits.

But the Obama EEOC challenged this regime, arguing, in effect, that there is no “failure to conciliate” defense. If the EEOC declares that it engaged in conciliation, that’s the end of the matter; there is no judicial review.

In Mach Mining, the Seventh Circuit Court of Appeals agreed with the EEOC, thereby creating a split in the circuits. The Supreme Court granted review.

And no wonder. Although the issue of conciliating employment discrimination claims is hardly an earth-shattering one, the Obama administration’s position regarding the power of government in this context seems seismic.

A statutory requirement that courts cannot review for compliance is no statutory requirement at all. The Seventh Circuit’s ruling in Mach Mining leaves the EEOC free to refuse to do what the statute requires of it — “endeavor to eliminate the employment practice by informal methods of conference, conciliation, and persuasion.”

Compliance is entrusted entirely to the government. This is music to the Obama administration’s ears. But it should be chilling to the rest of us, especially when advocated not in the context of a need for secrecy to protect national security but rather in connection with a garden variety government obligation.

During oral argument, the Supreme Court Justices may or may not have shivered, but the Court as a whole seemed a bit shocked. Justice Breyer, for example, reminded the government attorney that these days there is judicial review of virtually everything. He added, “of course there should be judicial review” here.

The Court, then, will almost certainly reject the EEOC’s position. The real questions are whether it will articulate a general standard for reviewing the EEOC’s conciliation efforts and, if so, what that standard will be.

The other question is whether any of the Court’s liberal Justices will back the EEOC’s position. The Obama administration has lost its share of Supreme Court cases 9-0. I hope this will be another such defeat. It’s appalling enough that the Seventh Circuit adopted the EEOC’s lawless position.

JOHN adds: This is a very serious matter. The sad reality is that the Democrats have succeeded in appointing a substantial number of far-left activist judges to the federal courts, and a handful of Republican appointees have joined them. The idea that any judge, let alone a circuit court panel, would endorse the Obama administration’s patent lawlessness in this case is almost unbelievable. It should be a wake-up call for Senate Republicans: they cannot allow the appointment of such out of the mainstream judges to continue.