The Important Story You’re Not Hearing Much About

What would you think of someone who got sued, lost in court, and celebrated the loss? You’d think there is something seriously amiss. In fact this has been the longstanding practice of a number of federal agencies, who actively cooperate with activist groups (invariably on the left) to set up lawsuits against agencies that result in the agencies having more power and instituting more regulations.

To give a good example, when the EPA lost the 2007 case of Massachusetts vs. EPA (that was the one that said the EPA could regulate greenhouse gas emissions), employees at EPA opened champagne to celebrate their “loss” at the Supreme Court. Much of the time these legal actions never actually make it very far in court, because the agency will “settle” with the plaintiffs through a consent decree, which means in practice that the agency conveniently consents to having more power. It is called “sue and settle,” but I call this “crony administration.” Much of the time these faux lawsuits are filed with the active participation of the agency, making a mockery of the rule of law.

This corrupt racket has been going on for 30 years or more, and neither of the previous Bush administrations did anything to stop it. Last week EPA administrator Scott Pruitt said the EPA would end the practice. Pruitt’s announcement reads, in part: “The days of this regulation through litigation, are terminated. The EPA will not resolve litigation through backroom deals with any type of special interest group.” Pruitt also announced steps to increase transparency about all matters under litigation—lifting the veil on this whole racket—so people can see what the activist groups are trying to do. I am sure environmental groups are in a rage about this, but are remaining remarkably quiet because they likely know that greater public transparency about this racket is the last thing they want.

Pruitt issued a sparkling good memo explaining more of the legal and constitutional background of his step. My favorite part of this memo are footnotes 8, 9, and 10, where Pruitt cites the Federalist Papers and other founders on the importance of the separation of powers, which the administrative state has been trampling for decades. This has to be the first time an EPA administrator has ever cited The Federalist in an official document. I imagine Gina McCarthy, Obama’s EPA head, probably never heard of The Federalist.

Here are he footnotes in full:

8 In The Federalist Number 47, James Madison wrote: One of the principal objections inculcated by the more respectable adversaries to the constitution, is its supposed violation of the political maxim, that the legislative, executive and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner, as at once to destroy all symmetry and beauty of form; and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty than that on which the objection is founded. The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal constitution therefore really chargeable with this accumulation of power or with a mixture of powers having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies, has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense, in which the preservation of liberty requires, that the three great departments of power should be separate and distinct. The Federalist No. 47 (James Madison) (emphasis added).

9 “The leading principle of our Constitution is the independence of the Legislature, Executive and Judiciary of each other.” Thomas Jefferson to George Hay, 1807. FE 9:59 (emphasis added). “The Constitution intended that the three great branches of the government should be co-ordinate and independent of each other. As to acts, therefore, which are to be done by either, it has given no control to another branch. . . . Where different branches have to act in their respective lines, finally and without appeal, under any law, they may give to it different and opposite constructions. . . . From these different constructions of the same act by different branches, less mischief arises than from giving to any one of them a control over the others.” Thomas Jefferson to George Hay, 1807. ME 11:213 (emphasis added).

10 “The separation of powers inside a government – and each official’s concern that he may be replaced by someone with a different agenda – creates incentives to use the judicial process to obtain an advantage. The consent decree is an important element in the strategy. . . . It is impossible for an agency to promulgate a regulation containing a clause such as ‘My successor cannot amend this regulation.’ But if the clause appears in a consent decree, perhaps the administrator gets his wish to dictate the policies of his successor.” Frank Easterbrook, Justice and Contract in Consent Judgments, 1987 U. Chi. L. Forum 19, 33-34 (1987).

I call this winning for sure.

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