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When Law Is a Second-Hand Emotion

As we noodle over administrative law’s foundations, we should also think carefully about its mechanics, and how these could better shape its compliance with the rule of law. Herewith an example: preliminary relief. (I’ll run together a bunch of doctrines that are technically different. But they all go to the timing of effective judicial relief.)

In an exceptionally well-written and economically literate op-ed, Mrs. Rhea Lana Riner describes her unpleasant interactions with the U.S. Department of Labor. She operates clothing consignment shops. Her business model, which she has franchised with great success, allows consignors to volunteer at sales events. The Labor Department says the volunteers are actually employees and must be paid minimum wage, plus overtime. So the Department went to town on Rhea Lana’s: it urged the volunteers to sue for back pay (none did) and then sent a demand letter: pay them or else. Mrs. Riner explains that

[t]he Labor Department’s years long and still-unofficial crusade has placed Rhea Lana’s into regulatory purgatory. The department is ordering me to conduct business to my detriment, and threatening hundreds of thousands of dollars in civil penalties if I fail to comply. Yet a federal court has ruled that I lack any meaningful recourse until the agency files an official complaint, which it has not done.

And may never do, Mrs. Riner. Because then, they’d have to defend their position in court. Nor would I put too much hope in the pending appeal. In a notorious case the EPA told the Sackett family that their property—dry, and situated quite a ways from water—might be a wetland. EPA threatened millions of dollars in fines, should they fail to “restore” the property (they had moved some dirt and gravel). And it said that the Sacketts had no business seeking judicial relief: no final agency action. The U.S. Supreme Court told the agency to cut it out. That was in 2012. Over three years later, the Sacketts still aren’t building; they’re litigating. And the Supreme Court’s unanimous decision in Sackett v. EPA racks up eleven “negative treatment” cites on Westlaw. Among those cites is (drumroll) Rhea Lana’s v. Department of Labor.

The timing of judicial relief matters not only in enforcement proceedings but also in rulemaking challenges. In the litigation over the feds’ “deferred action” for some millions of undocumented citizens, for example, the district court’s preliminary injunction against the feds—pending a decision on the merits—was the only meaningful form of relief: without it, the feds would have created an expansive benefit program that would no longer be reversible by any court or future administration. The same is true of a pending demand for a stay of the administration’s “clean power plan”: deny that relief, and the clean power ship will have sailed. EPA doesn’t seriously believe it has a legal basis for that plan. What it does believe in is its ability to induce anticipatory compliance by regulated, risk-averse firms and states who must apprehend that something like the government’s plan might some day go into effect. What’s law got to do with it? It’s a second-hand emotion.

Preliminary relief is very hard to get. There are good reasons for that arrangement: judicial economy, and a fear of inviting frivolous and opportunistic claims. Plus, a presumption of regularity attaches to government action.

The time has come to abandon that presumption and to think about government incentives instead. Government’s incentive is to get its way with minimal friction. The way to do that is not to drop the hammer on private parties; it’s to put their conduct under a dark cloud and play a game of attrition. EPA and DoL will be around forever, in business 24/7. You won’t be.

There are two ways of curbing such conduct. At the back end you could hold the officers personally liable for unlawful conduct (and believe it or not, that used to be our system). At the front end, you could extend a presumption of regularity to private conduct and private property: it’s yours unless and until the government shows a good reason to reverse the presumption. That might mean a requirement of judicial pre-approval for administrative demand letters and compliance orders, as for search warrants. It might mean interlocutory appeals of proposed (as distinct from final) agency rules. It might mean negative deference for certain kinds of agency action: if a guidance document looks like an evasion of more formal legal requirements, we the courts will treat it as presumptively unlawful. (Sounds crazy but it’s actually the law in areas such as equal protection, where it’s called “strict scrutiny.”)

To the AdLaw profession, ideas of this sort sound radical. To normal people, they sound esoteric—until you come face-to-face with the administrative state. Go ask Mrs. Riner.

Reader Discussion

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on November 02, 2015 at 10:07:33 am

"At the back end you could hold the officers personally liable for unlawful conduct (and believe it or not, that used to be our system)."

I rather like that. In the early days of the republic, this was true; however, wasn't it limited to certain official duties - say, customs and revenue agents? Or was it more extensive? In the back of my fuzzy brain, I seem to recall an anecdote about a Justice of the Peace being subjected to this liability. - ????

Anyone out there know how far this extended?

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gabe
on November 02, 2015 at 10:14:12 am

Administrative law even reaches the US Supreme Court. True: conservative lawyers really messed up America when they concocted DOMA based on Judeo-Christian religion. A good eleventh-grade civics students could see the constitutional hole in that Congressional act.

However, the administration pulled a "Rhea Lana Riner" tactic by not paying Edith Windsor when all parties to the case agreed she should be paid. As a consequence, there were no adversaries in Windsor vs US (2013), and under normal rules the Supreme Court would not have heard the case: No adversaries no case. But, by withholding the agreed payment and appealing to administration influenced justices, the non-case became a case.

Revolting Congress. Revolting administration. Revolting Supreme Court. A Civic People of the United States needs to collaborate and enact reform so as to create and over-arching culture of civic morality.

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Phil Beaver
on November 02, 2015 at 10:17:26 am

sorry: that's "an" not "and"

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Phil Beaver
on November 02, 2015 at 11:39:37 am

The implication of the idea that DOMA violates the establishment clause implies that American law of marriage was unconstitutional until the 21st century, but almost no one noticed. That doesn't pass the giggle test. More likely, the new definition of marriage is no less religious, but it defines itself as "not religion" in an arbitrary use of language.
On the other hand, Jefferson held that the law of nature, being reason, is not religion.

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Richard S
on November 02, 2015 at 11:51:56 am

Here is some instructional information on "HOW TO FIX A BROKEN RECORD" - try it - you (and we?) might like it!!!!!

https://www.youtube.com/watch?v=FYZHkDhad54

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gabe
on November 02, 2015 at 16:52:22 pm

"Jefferson held that the law of nature, being reason, is not religion."

Ahh!!, Richard: It will still not pass Phil's giggle test - after all, it is not physics or is it fizxic?

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gabe
on November 02, 2015 at 19:19:51 pm

Gabe, I recommend that you not feed the troll.

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djf
on November 03, 2015 at 09:57:47 am

dj:

Well, I did offer him an all expense paid trip to Coventry but I suppose trolling is preferable for him!

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gabe
on November 03, 2015 at 12:10:17 pm

That's a false statement. To the Coventry offer I said I would accept on receipt of the provisions. Anonymous gabe fell for the ruse and asked what provisions. I responded: name, address and telephone number. "Expense paid" is today's mendacity.

Whatever gabe is may be, but it is hard to say.

Meanwhile, real people who want to do something about the USA's legal dysfunction will begin to consider physics-based ethics as a replacement for the obviously ruinous 800 year old opinion-based ethics and the currently popular evidence-based ethics.

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Phil Beaver
on November 03, 2015 at 13:56:37 pm

From his studies and background Professor Greve is no doubt well aware that European history reports the administration *of* power and the centralizations of that administration. In the United States history is now reporting power *through* administration as it becomes more and more centralized.

The examples cited by Professor Greve are examples of the effects of the exercise of power of centralized administration, and the development of “tactics” for the objective of power for the administrators.

This somewhat reverse approach to achieve the historic European condition and function of administration, which requires recognition of “laws” of administration for the attainment of the particular condition and function of the power administered, has been undertaken, initially, by the establishment of rules for administrative *procedures*(and processes), which have been given a status of statutory authority equivalent to Law that provides power to administration.

Legislative impotence (or worse) to constrain the resulting, continuing, concentration and centralization of power in administration, with its resulting impacts on individual liberty, open access to relationships and associations, the determinations of objectives and the selection of means for their attainment have brought attention to the need for defensive responses to the incursions of administrative power.

The archives of this site have Professor Greve’s 8/24/2015 post: “The Regulatory State: a Modest Reform Proposal.” It’s worth rereading adjunct to this. The comments to that contain a suggestion for a “New Court,” to constrain administrative power. Charles Murray has suggested civil resistance to disrupt administrative functions. But if nothing is done, the gelded legislature will desert a populace of mules to the caprice of administrative power.

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R Richard Schweitzer
on November 03, 2015 at 15:21:04 pm

Benjamin Franklin in the Pennsylvania Constitution of September 28, 1776, which I quote:

"SECT. 47. In order that the freedom of the commonwealth may be preserved inviolate forever, there shall be chosen by ballot by the freemen in each city and county respectively, on the second Tuesday in October, in the Year one thousand seven hundred and eighty-three, and on the second Tuesday in October, in every seventh year thereafter, two persons in each city and county of this state, to be called the COUNCIL OF CENSORS; who shall meet together on the second Monday of November next ensuing their election; the majority of whom shall be a quorum in every case, except as to calling a convention, in which two-thirds of the whole number elected shall agree: And whose duty it shall be to enquire whether the constitution has been preserved inviolate in every part; and whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are intitled to by the constitution: They are also to enquire whether the public taxes have been justly laid and collected in all parts of this commonwealth, in what manner the public monies have been disposed of, and whether the laws have been duly executed. For these purposes they shall have power to send for persons, papers, and records; they shall have authority to pass public censures, to order impeachments, and to recommend to the legislature the repealing such laws as appear to them to have been enacted contrary to the principles of the constitution."

In 2015, 239 years later, it is evident that a "COUNCIL OF CENSORS" should have powers over both judges including Supreme Court justices as well as the media. Such a council need not be authorized by anything more than the will of a civic people. Its authority is already established by the preamble to the constitution for the USA.

And the "COUNCIL OF CENSORS" should employ humankind's basis of ethics: physics, which is energy, mass and space time from which everything emerges. Physics is and humankind discovers its emergences and strives to benefit from them. The interrelated system of axioms derived from the discovery of the emergences and derivable benefits is humankind's noble, work and source of ethics. (A friend of mine troubles himself by equivocating "science" for "physics" perhaps as an excuse for rejecting my definition of physics, thereby blinding his mind to the idea. Others use other pretense, not admitting that physics simply is.)

For example, the earth emerged as a globe-like planet. Based on Church opinion, Earth was held to be flat, delaying exploration of the Americas for 1000 years. But the earth's horizon (the physics of it) told seafarers the earth was like a ball, so they discovered the Americas. Physics-based ethics overcame opinion-based ethics.

Similarly, the possession of guns inspired popes to explore lands occupied by natives and claim them in their divine opinion, disregarding possession by the natives. The nations that popes so "authorized" gladly claimed original Christian possession, disregarding possession by the natives. Possession by the natives was not respected, but now if you can show evidence of Christian ownership, possession is the law: it's the Doctrine of Discovery--US law. It's opinion-based ethics.

And the guns also inspired the popes to authorize monopolies on African slave-trade, first to Portugal then to Spain, to economically develop the "discovered" lands. Protestant Kings responded "me too." By force persons owned the labors of persons with no regard for their lifetimes, but getting their names on Christian deeds to land. Christian opinion justified this awful practice. Physics informs humankind that no person can own another person. Opinion-based ethics is confused.

Under Laozi's influence (6th century BCE), Taoists often say, "Things do not get confused, we get confused." Physics-based ethics inexorably surfaces. Opinion-based ethics persists only by force.

This forum is being exposed to emerging new expressions. Some understand and some don't.

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Phil Beaver
on November 03, 2015 at 16:52:01 pm

From Wikipedia:

"In Internet slang, a troll (/ˈtroʊl/, /ˈtrɒl/) is a person who sows discord on the Internet by starting arguments or upsetting people, by posting inflammatory, extraneous, or off-topic messages in an online community (such as a newsgroup, forum, chat room, or blog) with the deliberate intent of provoking readers into an emotional response or of otherwise disrupting normal on-topic discussion, often for their own amusement."

Who's the troll here?

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Scott Amorian
on November 03, 2015 at 18:20:01 pm

Gee, mommy!!! Look at ALL THE BIG WORDS I learned today and i even learned how to use them in a sentence!!!!!!

Can I have an orange slice now?

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gabe
on November 03, 2015 at 19:07:12 pm

Gabe................They find us Gabe. How do they find us?

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libertarian jerry
on November 03, 2015 at 19:52:04 pm
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Scott Amorian

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