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May 26, 2023

Good News: SCOTUS Rules Against the Regulators

By reaffirming the property rights of a husband and wife, the High Court struck a blow for Liberty over statism.

Yesterday was a good day for American Liberty, and we have our Supreme Court’s 5-3-1 conservative majority to thank for it.

As The Wall Street Journal reports, “The Supreme Court limited the Environmental Protection Agency’s authority over wetlands in a decision with broad ramifications for the environment, agriculture, energy and mining.”

To read that lead sentence from the Journal, one would think this to be a clash of titans — say, the energy industry against the regulatory state. But it wasn’t that at all. No, the High Court didn’t green-light the construction of a federal dam for wiping out the last of the snail darters — though we’d have been just fine if it did. Instead, the Court ruled on behalf of a lowly husband and wife, Michael and Chantell Sackett, who for 16 freakin’ years have been battling the bureaucratic brigades in order to build a home on land that they owned. Dry land that they owned. Dry land that the Environmental Protection Agency and the Army Corps of Engineers have claimed is in fact a wetland and therefore subject to the whims of the regulatory commissars.

“Don’t believe the cries that the 5-4 decision will despoil America’s precious wetlands,” say the Journal’s editorial page editors. “The majority simply stopped a regulatory land grab.” Indeed they did. The editors continue:

The Clean Water Act (CWA) authorizes EPA to regulate only “navigable waters” in interstate commerce. Yet the EPA said the Sacketts’ property was connected to a wetland some 30 feet away, which was connected to a ditch that connected to a non-navigable creek that connected to a lake. Follow that?

Americans anywhere in the country could have their backyard declared a wetland, but they wouldn’t know it until the EPA swoops in and threatens enormous penalties for pouring herbicide on weeds. EPA advises landowners to solicit the Army Corps’ opinion before doing anything with their property. But 75% of the time the Corps claims jurisdiction.

In fact, all nine justices ruled in favor of the Sacketts, although the Court split 5-4 on the actual scope of federal power. Still, it was a win.

In writing the majority opinion, Justice Samuel Alito took up the joint causes of Liberty and limited government. And he did so by asking a simple question about regulatory overreach — and by separating the occasional good work of the regulatory state from the trampling of individual rights that occurs when it runs amok.

“By all accounts,” wrote Alito, “the [Clean Water] Act has been a great success. Before its enactment in 1972, many of the Nation’s rivers, lakes, and streams were severely polluted, and existing federal legislation had proved to be inadequate. Today, many formerly fetid bodies of water are safe for the use and enjoyment of the people of this country.”

Alito continued: “There is, however, an unfortunate footnote to this success story: the outer boundaries of the Act’s geographical reach have been uncertain from the start. The Act applies to ‘the waters of the United States,’ but what does that phrase mean? [Does it mean] ditches, swimming pools, and puddles?”

Indeed, where does the long arm of the regulatory state end and where do our rights as individual Americans begin?

Much has been made of the Supreme Court’s seemingly solid conservative majority, and it’s been the cause of much teeth-gnashing and garment-rending on the Left. Their angst, though, has been largely focused on rulings involving the culture wars — rulings on abortion and affirmative action and religious liberty, for example. But this under-the-radar ruling, in favor of private property, strikes as big a blow against Big Government and in favor of little people as any other.

In his 1998 book The Noblest Triumph: Property and Prosperity Through the Ages, the late British-born American author Tom Bethell argued that the concept of private property is inextricably linked to the foundational institutions of Western civilization, especially those of justice and liberty. “When property is privatized and the rule of law is established, in such a way that all including rulers themselves are subject to the same law,” he wrote, “economies will prosper and civilizations will blossom.”

On the other hand, Bethell argued, the welfare states of the Western world “were built on the premise that property … is no longer sacred” and can thus be taken from some and given to others. This redistributive mindset is the foundation of all the awful -isms in politics — leftism, socialism, communism, Marxism, progressivism — and it’s how Democrats win votes. They promise to rob rich Peter to pay poor Paul. Those who doubt this need only harken back to the 2008 presidential campaign, when Barack Obama told Joe “The Plumber” Wurzelbacher and everyone else within earshot, “I think when you spread the wealth around, it’s good for everybody.”

That’s right. Democrats believe it’s “good for everybody” when the government snatches away what’s rightfully ours — just as the EPA for 16 years snatched away the private property rights of the Sackett family.

Yesterday’s Supreme Court ruling, though, which endeavored “to identify with greater clarity what the [Clean Water] Act means by ‘the waters of the United States,’” was a much-needed defense of private property rights and a good punch in the nose of Big Government.

Hopefully, Sackett v. EPA will send a message to those on the Left that there are limits to the power of the regulatory state and the unelected bureaucrats who routinely wield it against us.

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