Among the intriguing AdLaw cases on the Supreme Court’s docket is U.S. Army Corps of Engineers v. Hawkes. The Hawkes own some land 120 miles from the nearest navigable river, where they want to dig up peat moss. The feds think that this land is their land, or water. In any event, no. To figure out whether this or that parcel is actually water and thus subject to the feds’ jurisdiction under the Clean Water Act the Corps has created a process called a “Jurisdictional Determination” (“JD”), which involves expensive (for the enforcement target) fact-finding and then adjudication before an administrative body.
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.
This year’s Federalist Society convention had it all. Prospective presidential candidates. Potential Supreme Court nominees. Lively debates on issues ranging from the proper role of federalism to the impact of the Obama Administration’s regulatory agenda. Throughout the convention, many speakers, of all ideological stripes, agreed that the Obama Administration has taken a very expansive view of executive and agency power.