Getting hammered in the Supreme Court
Sackett v. EPA. Under the Clean Water Act, EPA can issue orders, and violation of the orders is punishable by a civil penalty of $37,500 per day and up. EPA's position was that such an order was not a final agency decision, and thus not reviewable by a court. If you received one, and disputed its legality, your remedy was to dare EPA to sue you.... and be financially ruined if the court upheld the order. That position lost 9-0, liberals and conservatives alike rejecting it.
Here's the transcript of oral argument. The argument of the Deputy Solicitor General starts at p. 25, and gets ugly, early. The custom is that if two Justices ask overlapping questions, which doesn't often happen, you answer the senior Justice first. In this argument, the junior Justices had trouble getting a word in edgewise!
JUSTICE SOTOMAYOR: Mr. Stewart, I -
JUSTICE KENNEDY: They were getting a good night's sleep? But they are getting a good night's sleep before they read your brief? ((Laughter.)
JUSTICE KAGAN: Could I ask you -
JUSTICE ALITO: Well, Mr. Stewart, if you - if you related the facts of this case as they come to us to an ordinary homeowner, don't you think most ordinary homeowners would say this kind of thing can't happen in the United States?
JUSTICE KAGAN: But I'm -
JUSTICE SCALIA: Suppose the Corps of Engineers agrees that it's not a wetland, and its basis for refusing to issue the permit is we don't give a permit; you don't need a permit.
JUSTICE KAGAN: And doesn't most of -
JUSTICE SCALIA: So, they could just -- just dispense with this compliance order and tell the Sacketts, in our view, this is a warning...
JUSTICE KAGAN: But, Mr. Stewart, you -
CHIEF JUSTICE ROBERTS: If you - ....
Hat tip to friend Jim Norell....