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Supreme Court Continues Its Assault on the Regulatory State

Everyone is looking forward to the three days of arguments next week in the Supreme Court on the individual mandate and the health care law. But regardless of that outcome, the court is well on its way to expanding the rights of corporations over the individual, and curtailing Americans’ access to the courts for redress.

Witness for example the recent ruling empowering state governments to violate the Family and Medical Leave Act:

By the all-too-familiar 5-4 split, the U.S. Supreme Court ruled yesterday that workers cannot sue state governments for monetary damages when denied the unpaid time off guaranteed by the Family and Medical Leave Act.

The 1993 law provided those with full-time jobs at private companies of more than 50 employees and employees of federal, state, and local public governments up to 12 workweeks of unpaid, job-protected leave annually for family and medical reasons.

But the Supreme Court’s plurality in this case, Coleman v. Court of Appeals of Maryland, said that citizens can only sue state governments for damages when Congress finds “a pattern of constitutional violations” and tailors “a remedy congruent and proportional to the documented violations.” This sovereign immunity means that, while state employees have the right to take the leave, if the state blocks their exercise of that right, their only recourse is to get a judge to reverse the potential violation, in advance.

As Attaturk pointed out this morning, this appears to violate a plain reading of the 11th Amendment, and could be expanded to grant state immunity over a wide variety of claims.

Today, the Supremes, in a unanimous ruling, allowed an Idaho couple the right to fight the EPA on a Clean Water Act ruling.

The Supreme Court on Wednesday unanimously reversed a lower court opinion that forbade an Idaho couple from challenging an Environmental Protection Agency compliance order that carried with it tens, if not hundreds, of thousands of dollars in potential penalties.

A few months after Chantell and Michael Sackett began preparing to build their dream home just north of Idaho’s Priest Lake in 2005, the EPA came calling with an order under the Clean Water Act that they stop and restore their lot to its original condition. If they failed to comply and the EPA brought action, the Sacketts faced up to $75,000 in civil penalties for every day they failed to comply with the order. Lower courts refused the Sacketts an opportunity to fight the order — and with it, the fines they were potentially accruing — until the EPA itself chose to bring an action.

Justice Antonin Scalia, writing on behalf of the entire Court, allowed the Sacketts to bring suit.

I don’t see a major problem with allowing the suit to go forward, but in a concurring opinion, Justice Samuel Alito suggested that the Clean Water Act and these compliance orders were overbroad and unclear and potentially illegal. That’s how you can make sense of these two seemingly contradictory opinions. The Court took away the right to sue when an individual employee got snookered out of their benefits, which necessarily limits the scope of federal regulations. They gave the right to sue as a means to, down the road, limit the scope of federal regulations.

The key is the limiting of the regulations. And the Roberts Court has found themselves on that side of the debate almost every time.

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David Dayen

David Dayen