Sackett v. EPA: Regulatory Agencies Gone Rogue

From time to time,” Ronald Reagan said in his first inaugural address, on January 20, 1981, “we’ve been tempted to believe that society has become too complex to be managed by self-rule” and that “government by an elite group is superior to government for, by, and of the people.”  

That is precisely the justification we frequently hear for today’s administrative state—including federal agency actions that upset the Constitution’s separation of powers and shrink individual liberty. 

We’re often told that today’s problems are too complex for the American people to understand, let alone address. From the COVID-19 pandemic to climate change—and every potentially “complex” issue in between—we’ve been told that agency experts are the solution to our problems. That these experts know best. That they have our best interests at heart. That we should trust them.  

But in case after case, to paraphrase President Reagan, the experts at federal agencies are not the solution to the problem. They are the problem.  

Take the case of Mike and Chantell Sackett. The couple have been locked in a Kafkaesque legal battle with the EPA over the right to build their dream home for the past 15 years. Shortly after breaking ground in 2007, the couple were told by officials from the EPA and the Army Corps of Engineers that their 0.6-acre lot in a residential subdivision contained wetlands subject to federal regulation as “navigable waters” under the Clean Water Act. They were threatened with fines of tens of thousands of dollars per day if they proceeded with construction. 

The Clean Water Act authorizes the EPA and the Army Corps of Engineers to regulate the discharge of pollutants into “navigable waters,” which the Act defines as “the waters of the United States, including the territorial seas.” But instead of recognizing that the phrase “waters of the United States” is a jurisdictional limit on its authority, the EPA has interpreted the phrase to expand its control over everyday land-use activities, like the construction of a single-family home.  

And the dangers of agency overreach are not limited to the EPA, as PLF’s other cases demonstrate. During the COVID-19 pandemic, the CDC adopted an order prohibiting certain evictions for non-payment of rent. The problem? Congress did not authorize the CDC to ban evictions, and the Constitution’s separation of powers does not allow the CDC to make law.  

Or take the Census Bureau. Unhappy with being limited to the decennial Census authorized by Congress—which directs the Census Bureau to count the actual number of persons in the United States—or to sampling surveys which verify those results, the Census Bureau has claimed that it has the authority, not only to ask people deeply personal questions, like whether they have any physical, mental, or emotional conditions, but also to fine them thousands of dollars for refusing to answer. Like the EPA and the CDC, the Census Bureau also exceeded the authority granted it by Congress.  

These stories show that administrative agencies frequently seek to expand their powers beyond those given to them by Congress, with dangerous consequences for individual liberty.   

Because the EPA overstepped its authority—and wrongly decided the Sacketts’ residential lot contains navigable waters—Mike and Chantell have been unable to use their property for 15 years. 

Their entanglement with the EPA may soon come to an end: The Supreme Court will hear the Sacketts’ case on October 3 to decide, once and for all, the proper limits of the EPA’s authority over wetlands. A win for the Sacketts would not only return the EPA’s role to its congressionally designated limits but would also be a win for the separation of powers more broadly.  

No agency should be able to unilaterally rob people like the Sacketts of their liberty and property. The complexity of our problems—including environmental, health, and economic problems—cannot be an excuse for giving up on the idea of representative government and ceding power to unelected experts. After all, as President Reagan quipped in his inaugural address, “If no one among us is capable of governing himself, then who among us has the capacity to govern someone else?”