Bishop: Everything You Know is Wrong

Bishop: Everything You Know is Wrong

Neal Katyal, a prominent lawyer who served in the Obama Administration told the national gathering of the Federalist Society this weekend that nationwide injunctions should not be eschewed by the right simply because there are a record number being entered against the Trump administration. Indeed, he pointed out, for a group that focused for three days on administrative overreach, seeing the courts as constrained in their response to administrative action is like throwing in the towel.

This was food for thought for a room full of lawyers (and folks like myself who take the law as an avocation). We understand the structural constraints of the judiciary as hearing only cases in controversy brought by parties who can demonstrate injury over which the court has the power to grant relief with remedy only to the parties before the court as a design to limit overreach by judges. But when it comes to administrative agencies, aren’t we looking for judges to stop agency overreach and could remedies of necessity in some cases apply beyond the parties?

Certainly the resistance to Trump has played out in sometimes spurious challenges to his executive actions that have resulted in nationwide injunctions, for instance the one against the travel ban, that was eventually upheld by the Supreme Court. And Justice Thomas’ concurrence in that case suggested strongly that the injunction itself was faulty as the district court had no power to bar the application of the ban to anyone but the parties before the court. Katyal’s formulation suggests a different standard: that in the rare cases relief cannot be afforded to the parties in the case without a broader application, then nationwide injunctions are appropriate.

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Much attention has been paid to injunctions against Trump’s policies, but how quickly we forget Judge Hanen in Texas issuing a nationwide injunction against the Obama Administration’s attempt to expand on its Deferred Action for Childhood Arrivals(DACA). One can argue whether the harm alleged by the 26 states that were party to that challenge could have been remedied by an injunction that did not cover the other 24 states. But what may get really interesting is that many of the same states have returned to Judge Hanen’s court to challenge DACA itself. It seems quite possible that the various injunctions preventing Trump from ending the program will shortly run up against an injunction demanding that he end it – the 5th circuit meets the 9th circuit. But these cases would be in conflict even if they did not claim nationwide jurisdiction.

A government hamstrung by its own policies is hardly unique to these court fights over immigration. President Trump last week raised eyebrows when he suggested that Californians should get their rakes out to mitigate fires. While environmentalists insisted that these fires must be evidence of climate change and Trump’s opponents belittled his grasp of forest management in Finland, they ignored the obvious reality that there has been a massive  climate change: in forest management.

You can hardly stop cutting trees and thinning forests and imagine that you’re running some kind of experiment on changing CO2 concentrations. In experiments you hold other variables constant. But environmentalists blocking timber harvests using the Endangered Species Act have been a principal culprit in wiping out more than half of California’s sawmills in the last 20 years and both harvest and thinning as tools for managing fuel loads have been much diminished.

No one really disputes that the environmentalists have been playing with fire in the forests, but the resistance jumps to its soapboxes to belittle such criticism as it does not contemplate that Southern California is burning as well. And much of that landscape is Chaparral and Sage Scrub, not forest. Well, such Trump critics seem to forget that Southern California is equally plagued with environmentalists using endangered species as pretexts against human development.

Indeed it was some 25 years ago that I met Mike Rowe (not that Mike Rowe) and Cindy Domenigoni, who like other farmers were denied permission to disc fire breaks around their homes and to segregate portions of their Riverside County ranches (as if you should even need permission from anyone to carry out normative fire protection activities). But the government decreed that Kangaroo Rat habitat would take precedence over fire protection. Domenigoni’s ranch burned taking the Rat habitat with it. Rowe in defiance of government rules when fire approached disced a firebreak and save his house while all those around him burned. But go on believing this is all about climate change if its suits you. 

And speaking of purportedly endangered species and climate change, those polar bears must be on the way out by now with their habitat threatened by receding sea ice, not!. And the disappearing reindeer, never endangered but purportedly impacted, the next poster ‘children’ for habitat loss to climate change? Not!

Well, at least campaigners here can rest assured that Europe is light years ahead of the US setting an example of how committed their people are to carbon taxes . . . oops!

Well we can rest secure that Trump as a lightening rod for hate is alive and well following the shooting in Pittsburg. Or can we?

Well we at least the midterms were a historic setback for Trump . . .weren’t they? It  seems Barack Obama lost 63 house seats for the Democrats in the midterms following his election, putting a bit of a damper on the notion that Trump is getting an unprecedented rebuke. But don’t let’s allow such little things to get in the way of hating all things Trump.

There are just some times that everything you know is wrong.

 

Brian Bishop is on the board of OSTPA and has spent 20 years of activism protecting property rights, fighting over regulation and perverse incentives in tax policy.