Sneaking around the Constitution

Return of Sue and Settle

The EPA, during the Obama administration, found a way to impose policy that had no chance of passing Congress. The method was simple, arrange a lawsuit by a friendly advocacy group demanding restrictions by the EPA not allowed by current law, then under the supervision of a friendly judge, settle the case agreeing to do what the EPA wanted to do in the first place. The judge’s consent agreement then has the force of law.

Congress can. of course, pass contrary legislation, but with the President backing the ploy, it would have to do so with a veto proof majority.

And there you have it, rule by fiat even with the support of only 34% of one house of Congress.

The Obama administration nibbled around the edges of the Clean Air Act to impose rules that could not have passed Congress, and the Biden administration is preparing to impose a command economy using this ploy.

Hopefully, the Roberts court will in this case stick with its policy of deference to the legislative branch,

28 thoughts on “Sneaking around the Constitution

  1. “ …there’s simply no legal mechanism by which private parties can challenge the EPA’s refusal to enforce. The only option is for private groups or individuals to sue the polluters themselves, one case at a time. That process is costly and time-consuming—and why Congress created the EPA in the first place.”

    So Trump cut enforcement of the law unilaterally.

    This is exactly what you are referring to. Except from the side of the polluters.

    Liked by 2 people

      1. Wouldn’t need sue and settle if Trump did not stop enforcing the law. If that is respecting the Constitution, which expects the executive to carry out the wishes of the people as written by Congress, then that explains that administration.

        And calls to Ukraine, Georgia Secretary of State, ordering gangs to standby, ignoring subpoenas for his staff, were just more ways to “respect the Constitution”.

        I suppose.

        Liked by 2 people

        1. Sue and settle began during the Obama administration. Trump can’t be blamed for that.

          And no matter who is in power, it is contrary to our way of governance for bureaucrats to conspire with advocacy groups to make law that is contrary to the clear intent of Congress.

          You really don’t seem to care for our representative republic very much.


          1. Let me see if I understand.

            If the administration is not carrying out the execution of laws as passed by the people, through Congress, and people have to sue and settle for the law to be enforced, that is indication that I don’t care for a representative government.

            I would say that I do care much more than you if you think that a president can do as he pleases despite what Congress enacts.

            Then you don’t like voting either, (too many “unwashed” at the ballot box) so that makes more sense.

            Liked by 2 people

          2. You have it entirely backwards, I am saying a President must be bound by the law, and the bureaucracy as well.

            For example, the legal definition of navigable waters, which are under Federal jurisdiction, are waters useful for transportation or commerce. At the time the jurisdiction was established, that was determined by how far upstream you could travel in a laden canoe.

            Obama’s EPA came up with a rule, in conjunction with environmental activists, expanding the ‘Waters of the US” to include ponds and lakes that were not connected to navigable waters and even transient puddles on private property.

            That definition has never been adopted by Congress and would be soundly defeated if proposed.

            Trump dropped that rule but Biden’s EPA is trying to use a const agreement to reestablish it.

            So, who makes the law? Zealots in the bureaucracy or Congress.


          3. Len’s point is pretty simple to understand. You pretending to not understand?

            Just as the President must be bound by the law, he must also enforce the law.
            If he doesn’t then off to Court it must be – that or storm the Capitol, I suppose.

            Liked by 1 person

          4. “Obama’s EPA came up with a rule . . .”

            Maybe you should look at the legal framework before throwing out your usual Obama bashing . . .

            The antecedent act of Congress was the Rivers and Harbors Act of 1899 (“RHA”). Section 13 of the RHA made it unlawful to discharge refuse ‘‘into any navigable water of the United States, or into any tributary of
            any navigable water from which the same shall float or be washed into such navigable water.’’

            The “Clean Water Act” (“CWA”) as amended stated that the objective was ‘‘to restore and maintain
            the chemical, physical, and biological integrity of the Nation’s waters.’’ and that in order to meet that
            objective, Congress declared two national goals: (1) ‘‘that the discharge of pollutants into the navigable waters be eliminated by 1985’’ and (2) ‘‘that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983.”

            Now, since with the possible exception of the Great Salt Lake the waters held in every pond or lake or “transient puddle” eventually flows to the sea through those navigable waters it would be IMPOSSIBLE to achieve the goals set by Congress if ponds and lakes and puddles could be legally used as dumping grounds for toxic waste. Including such waters in the regulations is sensible, scientifically sound and conforms with the expressed intent of Congress going back 125 years.

            If you really think Congress would make ponds and lakes and puddles legal dumping sites for toxic waste the you are more out-of-touch with reality than even I would have thought.


          5. Actually, I have no objection, and agree that existing law prohibits discharge of pollutants into navigable waters. But that’s not what Obama’s Waters of the US does.

            For example, a couple was fined and forced to remove a deck on their home because it cast a shadow on a portion of a recurrent transient puddle. Farmers were prohibited from recontouring their fields to eliminate low spots that held water in rainy periods. Ranchers were required to fence cattle away from puddles so the cows would not muddy them, even though they were miles from any navigable stream.

            But again, you are using details to obscure a principle. Those restrictions were clearly not intended by the existing law. The regulatory process and Sue and Settle were used to expand the reach of the regulators to areas that were not intended by Congress and would not pass today.

            Legal tricks should not be used to defy the will of the people expressed through Congress.

            A good way to test the principle is to imagine it used in a way you don’t like. Consider a Firearms Friendly administration colluding with the NRA to settle a suit challenging the Federal Firearms Act and the ban on the manufacture and sale of full automatic weapons, settling a lawsuit that wipes out every Federal firearms restriction without an act of Congress.

            Still think Sue and Settle is clever?


          6. “Still think Sue and Settle is clever?”

            I think you are parrotting an exaggerated description of “Sue and Settle” from over-the-top right-wing media and other lying liars. Cherry-picked examples of bureaucratic overreach – which may or may not be true – are not persuasive of ANYBODY sneaking around the Constitution. Your record of less than honest sniping at President Obama reinforces what I think.

            And of course, now that the Courts have been packed from bottom to top with “conservative” ideologues, the very idea that they can reliably be used to subvert the law doesn’t withstand much scrutiny.

            You keep maintaining that the EPA is subverting the will of the people and the Congress. There is no evidence for that, If polling can be believed, then the public is very supportive of stringent protection of the environment. The will of the Congress is plain – protect the environment and clean up the mess. You should try to get past the idea that what YOU want or believe is what most other people want or believe as well. You are out of the mainstream and usually wrong in that belief.

            Liked by 1 person

  2. RE: “The Obama administration nibbled around the edges of the Clean Air Act to impose rules that could not have passed Congress…”

    WSJ’s opinion piece makes this point quite clear: “The Obama Administration often used this ‘sue and settle’ strategy to bypass Congress. Some 137 new Clean Air Act regulations were imposed as a result of legal settlements with green groups, including tighter ozone limits and new methane emissions standards.”

    Use of the courts to create regulation is obviously a problem. I can’t think of a systemic reform that might solve it since the courts are a legitimate place to settle disputes. What’s really needed here are antidotes for the hubris and groupthink that motivate these “sue and settle” court cases in the first place.


    1. The idea that Congress is being bypassed by the EPA or any other agency does not survive much scrutiny. Congress has the power and authority to change or cancel ANY regulation that it determines does not conform with its intent. The Congressional Review Act passed by the GOP and signed by President Clinton in the 90’s makes that power even easier to deploy. This expedited legislative process was used by Trump on numerous occasions.

      Liked by 1 person

      1. RE: “The idea that Congress is being bypassed by the EPA or any other agency does not survive much scrutiny.”

        Again: “Some 137 new Clean Air Act regulations were imposed as a result of legal settlements with green groups…”


        1. “Some 137 new Clean Air Act regulations were imposed as a result of legal settlements with green groups…””

          Yes, so? Which of those were for things that Congress would not approve and if there were some why did Congress not act to impose its will?

          Liked by 1 person

          1. For Congress to impose its will over a court order would have required the passage and signing of a bill to that effect. The CRA might have been effective on its own for an EPA regulation, but not for a court order.

            So, Congress would not only have to pass a clarifying law, it would have to do so with veto proof majorities, as Obama was supportive of the scam.


          2. “Obama was supportive of the scam.”

            Leave it to you to call the legal and Constitutional processes of government a “scam.” FYI, the higher courts are dominated by very conservative figures and have been for a long time. If any such process was actually a “scam” and the opponents lacked the political wherewithal to change it, then avenues of further suit and appeal were wide open.

            Liked by 1 person

        2. RE: “Yes, so?”

          The 137 regulations, could have been created or eliminated by Congress. That they were instead created by the courts is the issue.


          1. The 137 regulations were created by the EPA. Not by the courts. Courts cannot create federal regulations. All the courts can do is ensure that the EPA does not ignore the law.

            Congress NEVER gets down in the weeds such as you suggest. Its mandate to the Executive is clear. Stop pollution. Clean the air. Clean the water. Clean-up past messes. If it tried to legislate on every aspect of that mandate it could not function. The CRA makes it EASY to intervene if it feels the need to stop regulations.

            Liked by 1 person

          2. Did you read any of the articles?

            The point is that the rules were the result of consent decrees approved by the courts in settlement of suits against the EPA by its allies.

            In all cases they were rules the EPA could not have created on its own, other than by court order.


          3. Yes, the EPA consented to use its power to promulgate rules based on the court’s interpretation of the law. That’s what courts do. Interpret the law when there is a dispute. Sometime they require more regulation to comply and sometimes they require less. You only complain when they require more. But the basis is the same – the court interpreting the law that a plaintiff says is not being applied correctly.

            And none of that negates the power of the Congress IF it perceives that the law they passed is not being followed as intended.

            Liked by 1 person

          4. Wow, you just don’t read.

            It’s not a matter of the court interpreting the law, it’s a settlement agreement between the EPA and an advocacy group on the same side of the issue.

            Think of me being the head of the BATFE and getting the NRA to sue to eliminate the BATFE. We settle the case by eliminating the BATFE and all Federal gun laws.

            Suits are supposed to be contested, with both sides represented, but in these collusive lawsuits both parties are on the same side and other interests don’t have standing to intervene.

            And there is nothing Congress can do about it unless they have a supermajority to override the Presidential veto.

            Liked by 1 person

          5. “Wow, you just don’t read.”

            I do not subscribe to the WSJ and do not intend to. But the portion of the article that I could read stated that . . . “The Obama and Trump Justice Departments opposed the lawsuit. ” And that . . . “a Ninth Circuit Court of Appeals panel held the plaintiffs lacked standing and ordered the district court to dismiss the case.”

            From that I conclude that our Constitutional system of checks and balances is working and that no one is able to “sneak around the Constitution.”

            Liked by 1 person

          6. OK, here are the next three paragraphs

            “But the plaintiffs then sought to amend their complaint to keep the case alive and have prodded the Biden Administration to negotiate a settlement to impose their demands. Lo, federal Judge Ann Aiken last month ordered the Justice Department to engage in settlement talks with the plaintiffs with a conference scheduled for June 23.

            There’s no reason to surrender since the U.S. government already won the case. That’s why 17 state Attorneys General are requesting to intervene in the lawsuit since they don’t trust that the Biden Justice Department won’t reach a “collusive settlement” with the progressive plaintiffs.

            The Obama Administration often used this “sue and settle” strategy to bypass Congress. Some 137 new Clean Air Act regulations were imposed as a result of legal settlements with green groups, including tighter ozone limits and new methane emissions standards. The Obama Administration’s climate ambitions were modest compared to President Biden’s, which include eliminating all carbon emissions from power generation by 2035 and from the U.S. economy by 2050.”

            There is no chance that agenda would pass Congress, so, do you endorse rule by fiat or not.


          7. “There is no chance that agenda would pass Congress, so, do you endorse rule by fiat or not.”

            Uh, have you stopped beating your wife?

            YOU say there is no chance that the agenda would pass Congress. That is an opinion not based on anything but YOUR ‘druthers. And it is irrelevant. Congress has the power to stop anything that the EPA does that it disapproves of.

            You have no problem with the courts intervening if a plaintiff makes a case that the EPA has overreached its authority, but let a plaintiff make a case that the EPA is not living up to its responsibility and you start with this “rule by fiat” baloney.

            The controlling agent in this current process is the Judge. She is constrained by the law and is subject to review by higher courts. It is she, and not President Biden, who has kept the case alive. The Executive is NOT free to simply ignore her call for a conference to try to produce a lawful regulation that can end the case.

            Liked by 1 person

          8. There is a huge difference between restraining a federal agency overreaching its authority and one not going as far as you would like beyond the letter of the law.

            We know that Congress has not approved these new rules because previous attempt to pass them, particularly the Waters of the US, had been tried and failed.

            While the Congressional Review Act would provide some defense against a rule initiated by an agency, it does not apply to consent orders. That would require a veto proof majority.


          9. “There is a huge difference between restraining a federal agency overreaching its authority and one not going as far as you would like beyond the letter of the law”

            No, there is not. In fact the claim that there is a difference is kind of silly. In BOTH cases the issue for the court is the law being followed.

            Interesting you should cite failed Congressional efforts on “Waters of the United States.” The only legislation effort that I could find on this subject was H.R.5078 – Waters of the United States Regulatory Overreach Protection Act of 2014. That bill would have RESTRICTED the authority of the EPA and Corp of Engineers in exactly the way you want. It FAILED to get through Congress.

            Liked by 1 person

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