Welcome to power President Trump, now lawyer up
If nothing else, it’s been a wild ride. Nobody here at PLF can remember a stranger election season. From June 16, when Donald Trump announced he was running for President, to the morning of November 8, few of us understood that history was about to smack us on the side of the head like an errant golf ball on the 18th hole of the Trump National in New Jersey.
Along the way, there have been more than a few concerns about candidate Trump’s grasp on the complexities of the three-ring circus that is governing the greatest show on Earth. We had hoped that the last occupant of the oval office would have learned that a combination of a massive ego and a distorted sense of self-righteousness was not enough to govern. Here’s hoping that the new guy will be a quicker study on how to effectively manage both Congress and his own bureaucracy within the confines of his Constitutional power.
But our greatest hope is that Donald Trump meant it when he said he would reduce the size of the bureaucracy, cut back on job-killing regulations, and make life for the average American great again. It’s a tall order and there will be many obstacles.
For starters, the liberal left and the environmental industry have been on a fund-raising orgy that makes the feeding frenzy in Shark Week look like a Sunday school picnic. For them, this has been better than the ozone hole, species destruction, toxic air pollution and global warming rolled into one. Just visit their websites and learn how you too can donate your last dollar to defeat “not my President” when he tries to destroy the last vestige of nature and the environment by building new coal-fired power plants in every orphanage and critical habitat in the world. The left is promising to lawyer up and sue the President for every breath he takes.
So if the new President tries to roll back or replace regulations, he will be sued. If he tries to undo the last President’s midnight National Monument designations, he will be sued. If he looks cross-eyed at the snowflakes currently parading about the Capitol in strange costumes chanting for whatever it is they’re chanting for, he’ll be sued.
Naturally, there are many illegal Obama regulations that we’d love to see bite the dust. There is the massive federal power grab in the WOTUS rule. There is the brazen attempt to shut down coal-fired power plants with unprecedented, and illegal, air regulations. There are the rules that could only have been dreamed up in the head of a reanimated Franz Kafka – like the designation of critical habitat for endangered species on land where the protected animals do not and cannot exist. Not even Kafka’s hapless land surveyor would have done that. Perhaps our favorite is Obama’s designation of 5,000 square miles of the Atlantic Ocean as a National Landmark based on a statute that calls for the smallest area necessary to be set aside to preserve threatened landmarks.
To be sure, we’ve filed lawsuits against a fair number of these “use-my-pen” Obama rules. And when and if President Trump rolls back the carnage of President Obama’s rule-making binge, we’ll be happy to join the fray to make sure the interests of farmers, ranchers, and home owners are protected from some of the Obama-appointed courts.
But any change, for better or worse, will be a long slog. In 2015, a judge on the Ninth Circuit wrote this, describing how changes President Bush, W, tried to implement after taking over from President Clinton were still tied up in the courts after President Obama had been in office for almost 7 years:
“I write only to note the absurdity that we are in the home stretch of the Obama administration and still litigating the validity of policy changes implemented at the start of the George W. Bush administration.How can a President with a mere four or eight years in office hope to accomplish any meaningful policy change as the voters have a right to expect when they elect a new President if he enters the White House tethered by thousands of Lilliputian ropes of administrative procedure? The glacial pace of administrative litigation shifts authority from the political branches to the judiciary and invites th[is] type of judicial policy making …. This is just one of the ways we as a nation have become less a democracy and more an oligarchy governed by a cadre of black-robed mandarins.”
It will be a long haul indeed and the new President probably has no idea how tough this is going to be, even if he tries to do the right thing.
But we’re also not planning on sitting back and letting the new administration attempt to do things that violate our fundamental rights. We’re not sure if the new President yet understands that to protect property rights one should not condemn an elderly woman’s home for a casino’s limousine parking lot. We don’t know if the President will be tempted by the example set by his predecessor to rule by decree, ignoring both Congress and the Constitution. We hope that won’t happen and that behind the President’s campaign bluster and within his appointees there is an appreciation of liberty, of property rights, and of the Constitution. That’s our hope.
But at the same time, we’re lawyers and we’re ready, whichever way the rules break this time around.
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Waters of the United States
In 2015 PLF challenged the Environmental Protection Agency’s proposed rule to stretch federal control to nearly every pond, ditch, and puddle in the nation as nothing more than an outrageous—and illegal—power grab under cover of the Clean Water Act. And under the Act, people who are harmed by such rules have six years to sue in federal district court. That is, until the EPA rewrote the rule, trying to prevent legal action by giving property owners just 120 days to sue, and then only in federal appellate courts. On January 22, 2018, the U.S. Supreme Court rejected the EPA’s power play and unanimously ruled for PLF and property rights. The High Court agreed with PLF that the EPA cannot shelter its “waters of the United States” rule from judicial review by arbitrarily limiting where victims can sue.Read more
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