March 15, 2016

Federalist Society publishes Hawkes piece

By Mark Miller Senior Attorney

Earlier today, the Federalist Society published a close look at the legal issue the Supreme Court of the United States will consider later this month in Pacific Legal Foundation‘s Hawkes case. The piece, written by PLF principal attorney Damien Schiff and yours truly, is called U.S. Army Corps of Engineers v. Hawkes Co., Inc.: Wetlands Jurisdictional Determinations and the Right of Federal Judicial Review.

The article traces the history of APA judicial review vis-a-vis EPA and Army Corps of Engineers pre-enforcement Clean Water Act actions, and then it concludes:

Questions of reviewability of EPA and Corps actions under the CWA have been in the federal courts for decades. Much of the case law has focused on the reviewability of pre-enforcement actions. For a host of reasons, before Sackett, and now Hawkes, the courts had consistently held that APA review is unavailable for these types of actions. The Supreme Court in Sackett and the Eighth Circuit in Hawkes correctly changed the trajectory of administrative law and hemmed in agencies that had long ago left the bounds of reasonableness. That is why the Supreme Court of the United States should affirm the Eighth Circuit’s wise decision in Hawkes—that case, like Sackett before it, recognized the need to protect due process and basic fairness, and to cabin the power of agencies that for too long have acted well beyond their constitutional limits.

Read the whole thing here.

Thank you to Katie McClendon, the Federalist Society Director of Publications, for her time and effort in moving this article from an abstract idea to actual publication.

What to read next