No, 5 Men on the Supreme Court Did Not Just Decimate #MeToo

Last week, the Supreme Court released its opinions for Epic Systems Corp. v. Lewis, and the majority holding set off a firestorm of criticism from advocates for the #MeToo campaign against sexual assault and harassment.

Some advocates went so far as to accuse five men (the case was decided by a 5-4 majority) of seriously undermining the ability of women to seek recourse for sexually abusive workplace conditions.

Fortunately for women, this isn’t the case.

Epic Systems Corp. was not about sexual assault, has little impact on the ability of employers to be held accountable for workplace violations, and was decided in accordance with both longstanding legal precedent and the principles of judicial restraint.

This case was about how to interpret the interaction of two federal statutes.

Yes, you read that correctly. Although some commentators have made the Epic Systems holding sound apocalyptic for female employees, the key question in the case was fairly innocuous—did Congress intend parts of a later statute to override key provisions of an earlier statute?

In this case, employees entered into contracts with their respective employers. Those contracts stipulated that the employees agreed to use individualized arbitration proceedings to resolve any disputes with their employers that might arise during the course of employment. This meant the employees would also agree to forego class-action arbitration or lawsuits in state or federal court.

The employees nonetheless attempted to escape from these agreed-upon arbitration proceedings, and instead filed class-action lawsuits over various disputes they had with their employers.

The employers filed a motion in federal court to dismiss the lawsuits and require the employees to pursue their claims utilizing the procedure to which they had agreed in the contract. They pointed to the Federal Arbitration Act, which Congress passed in 1925 and which instructed federal courts to enforce arbitration agreements found in contracts, except in limited circumstances where the entire contract could be legally revoked.

The employees responded that the individualized arbitration clause was illegal—and therefore invalid—because the 1935 National Labor Relations Act guarantees employees the right to collective action against an employer. According to the employees, Congress intended that law to override any conflicting portion of the Arbitration Act.

The majority followed decades of clear legal precedent.

When one party claims that two federal statutes conflict, the Supreme Court follows the same mode of analysis it has utilized on many occasions over many decades to resolve the issue. The court assumes that if Congress wants to override an earlier statute with a later statute, it will make its intent to do so “clear and manifest” and will specifically address the pre-existing law it wishes to override.

If Congress doesn’t do this, the court “strives to give effect to both [statutes]” under the assumption that Congress intended the statutes to work harmoniously. It does this to avoid picking and choosing amongst various policies, a task constitutionally entrusted to Congress.

The majority rightly pointed out that nothing in the later National Labor Relations Act expresses Congress’ approval or disapproval of individualized arbitration agreements, much less expresses a clear intent to override fundamental provisions of the Federal Arbitration Act.

As Justice Neil Gorsuch, writing for the majority, noted, “[w]hen Congress wants to mandate particular dispute resolution procedures it knows exactly how to do so.” But Congress made no overt attempt to restrict the use of individualized arbitration agreements. Instead, the National Labor Relations Act focuses on the right of employees to organize unions and bargain collectively for or against contractual conditions.

Some commentators misunderstand the Epic Systems holding.

Several media outlets have reported on this narrow holding as though the Supreme Court had effectively denied the right of employees to seek collective recourse against their employers.

For example, the San Francisco Chronicle quoted one attorney as claiming that, “Collectively, women can continue to demand that employers and companies can’t silence them … . They can continue to speak out and demand that companies voluntarily change their policies. [Women] just had five men decide they couldn’t do this.”

Author Helaine Olen similarly told The Washington Post that the majority opinion “makes it all but impossible for workers who encounter discrimination, wage theft, [or] harassment … to legally insist on their rights.”

The good news is that is not what the “five men” of the majority held in Epic Systems. Employees—both male and female—absolutely maintain the right under the National Labor Relations Act to join unions and bargain collectively with their employer, and can continue to demand collectively that companies change their policies.

All the court did was interpret the straightforward language of a federal law that requires courts to enforce arbitration agreements. If employees don’t like individual arbitration agreements, they are free to bargain collectively to change them. They are also free to lobby Congress to pass legislation clearly overriding the Federal Arbitration Act.

Other commentators have insisted that this ruling deals a severe blow to the #MeToo campaign by preventing women who have been sexually harassed or assaulted in the workplace from seeking collective action against their employers.

They argue that making employees abide by the arbitration agreements in their contracts will “be chilling for the #MeToo movement, which has made getting rid of mandatory arbitration agreements paramount. That’s because arbitration shrouds workplace sexual harassment claims in secrecy, thus making it hard for victims to come forward while protecting serial abusers.”

While the description of individualized arbitration proceedings as adverse to complainants is dubious, a bigger problem is the suggestion that the Supreme Court is to blame for any alleged chilling effect.

The reality is that Congress passed the Federal Arbitration Act, and it’s not the court’s role to determine whether this law represents good or bad policy, or to tweak its meaning to avoid outcomes it doesn’t particularly like.

If enforcing individualized arbitration agreements has a chilling effect and is indeed bad public policy, the proper way of neutralizing that effect is the same here as for all poorly constructed or ill-conceived statutes that were nonetheless within Congress’ constitutional authority to enact—through the legislative process, not judicial fiat.

It isn’t egregious for judges to use standard and predictable frameworks for interpreting statutes. It is, rather, egregious for judges to take upon themselves the policymaking authority constitutionally granted to Congress, picking and choosing which parts of which statutes Congress ought to override.

The hysteria, not the Supreme Court, hurts #MeToo.

The #MeToo campaign has been criticized for a number of things, sometimes rightly and sometimes erroneously. One of the main legitimate criticisms is that it encourages a certain sense of hysteria and overreaction to innocuous events, and that at times some of its proponents lack the ability to have rational, objective discussions about the nuances of law and public policy.

This complete mischaracterization of a Supreme Court holding and its effect on women, as well as the blame shifting away from Congress as the source of any problem that may exist because of the Federal Arbitration Act, does more to damage the #MeToo movement than the judicial restraint exhibited by the justices of the majority.

It isn’t in the best interests of anyone for courts to selectively rewrite statutes, ignore longstanding rules of statutory interpretation, or leave the nation guessing as to how they will construe laws on a given day.

Consistent interpretation of the law and judicial restraint from policymaking are not enemies of justice and democracy, but rather prerequisites for them. And this makes the Epic Systems holding something to celebrate.

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The Mojo of Trumponomics

T.S. Eliot famously wrote that April is the cruelest month, but when it comes to America’s fiscal picture, nothing could be further from the truth about this past April. The latest government numbers confirm that last month was a blockbuster for growth, federal revenues, and deficit reduction.

One of the key principles of Trumponomics is that faster economic growth can help solve a multitude of other social and economic problems, from poverty to inner-city decline to lowering the national debt.

We’re not quite at a sustained elevated growth rate of 3 percent yet, but the latest economy snapshot tells us we are knocking on the door. The growth rate over the last four quarters came in at 2.9 percent, which was higher than any of the eight years of Barack Obama’s presidency.

Halfway through this current quarter, which began on April 1, the Atlanta Federal Reserve estimates growth at 4 percent. If that persists through the end of June, we will have reached an average growth rate of 3 percent under President Donald Trump.

Not bad, given that nearly every liberal critic trashed the president’s campaign forecast of 3 percent to 4 percent growth as an impossible dream.

Economists such as Larry Summers, Obama’s first chief economist, gloomily declared that we were mired in a new era of “secular stagnation” and that 3 percent growth was unachievable. Paul Krugman of The New York Times said it was more likely we would see flying cars than 3 percent to 4 percent growth.

Now for the even better news. We are already starting to see a fiscal dividend from Trump’s tax, energy, and pro-business policies. The Congressional Budget Office reports that tax revenues in April—by far the biggest month of the year for tax collections because of the April 15 filing deadline—totaled $515 billion, which was a robust 13 percent rise in receipts over last year.

MoneyWeek reports that the $218 billion monthly surplus (revenues over expenditures) this April was the largest ever, with the previous record being $180 billion in 2001. (April is always the one surplus month.)

Here’s the simple lesson: more growth, more tax revenue.

But there’s another lesson, and it is about how wrong the bean counters in Congress were who said this tax bill would “cost” the Treasury $1.5 trillion to $2 trillion in lost revenues over the next decade.

If the higher growth rate that Trump has already accomplished remains in place, then the impact will be well over $3 trillion of more revenue and thus lower debt levels over the decade. Putting people to work is the best way to balance the budget. Period.

Critics will dismiss the importance of these higher revenue collections by arguing that the new receipts are for 2017 tax payments, which don’t take account of the tax cut that passed in December. This ignores that some of the growth we have seen was a result of the anticipation of the tax cut. Moreover, the fact that the tax cuts are just sinking in means that we should get even higher growth rates for the next several years at least.

Alas, it is not all good news in the April surprise. The inexcusable omnibus spending bill increased federal spending by some $300 billion in 2018, and we are starting to feel the impact of that splurge. Federal outlays are up 8.7 percent in April. That’s unforgivable, given that Republicans run everything in Washington these days.

No one thought that Trump could ramp up the growth rate to 3 percent or that his policies would boost federal revenues. But he is doing just that—which is why all that the Democrats and the media want to talk about these days is Russia and Stormy Daniels.

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The UN Redefines What It Means to Be a ‘Human’

In blatant violation of international law, the United Nations Office of the High Commissioner for Human Rights has unveiled a startling new campaign that claims “you have human rights since birth.”

The unsettling image, which depicts a baby’s arm with the statement written on a hospital bracelet, makes clear the position of this U.N. body—human rights should not be afforded to human beings until after they are born.

Abortion advocates might applaud this claim, but the position of the body flies in the face of established, and binding, international law on the rights of the unborn.

As the U.N. body in charge of human rights, the Office of the High Commissioner for Human Rights is mandated to uphold the international legal framework. Deploying the poster at strategic vantage points at the U.N. in Geneva serves as a provocative, and jarring, assault on the fundamental principle of the right to life enshrined in international law and the countries that continue to defend it.

The Convention on the Rights of the Child, the pre-eminent international treaty on children’s rights, leaves no room for ambiguity in its preamble. “The child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth,” it states.

Other international treaties unequivocally reference the right to life of the unborn, such as the International Covenant on Civil and Political Rights. In this treaty, the death penalty is prohibited for pregnant women to “save the life of an innocent unborn child,” as explained in its accompanying interpretative documents (A/C.3/SR.819, paragraphs 17 & 33).

Although shocking, the ease with which the office goes against international law is not without precedent. Led by a high commissioner for human rights who functions largely without check, the office frequently has veered into areas that lack member state approval, running multimillion-dollar campaigns and issuing policy recommendations that overtly contravene international law, not to mention the will of member states.

Countries are subjected to regular policing in which they aggressively are urged to change their laws on matters that fall under domestic jurisdiction and have no bearing on human rights.

It is difficult to navigate the fine line between respect for a state’s self-determination and the urgency of U.N. interference when human rights are at stake, but the activities of the human rights office far surpass the work of ensuring fundamental human rights.

The new round of posters, tied to the 70th anniversary of the Universal Declaration of Human Rights, reveals just how far the office is willing to go in its mission to overhaul international law to further a nonconsensual activist agenda that defies the traditional, religious, or ethical values that so many countries and peoples hold sacred.

The declaration, as with the other founding documents of international law, was expertly drafted to protect these values and leave room for crucial national self-determination. It is a great irony that the campaign is tied to the declaration, which is still considered the most important reference point on human rights today.

The mandate of the Office of the High Commissioner for Human Rights is to promote and protect human rights and to coordinate the many human rights mechanisms of the United Nations to monitor and improve member states’ compliance with the treaties they have signed.

It claims to be an “objective voice” on human rights, but it regularly issues highly coercive recommendations to states under the guise of human rights and uses a complex network of special rapporteurs, independent experts, and working groups to aid with enforcement.

These procedures are purportedly impartial and autonomous, but the human rights office’s efforts to force countries to change their national laws on an array of highly sensitive social issues demonstrates a marked disregard for state sovereignty.

Much of the lack of accountability surrounding the office stems from the inherent tension in monitoring human rights. By its very nature, the task of overseeing countries’ human rights records requires a fair amount of independence. The office must be free to make unbiased assessments regarding what is going with human rights at the country level.

But the subsequent autonomy that it enjoys has resulted in a flagrant disrespect for the very international legal documents that it was created to uphold. As evidenced by these posters, the time has come for increased accountability for the Office of the High Commissioner for Human Rights—the rights of the unborn all around the world are at stake.

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Supreme Court to Police: Get Off the People’s Lawn

This week, the Supreme Court held that the Fourth Amendment does not permit a police officer to enter uninvited onto someone’s driveway to search a parked vehicle, without first obtaining a warrant.

That’s an important ruling, since no one wants police officers roaming across their private property searching for evidence of a crime. But Justice Clarence Thomas raised another important issue in a concurring opinion: In that scenario, what remedy should there be against the officer’s unlawful behavior?

Thomas proposed an answer that bucks Supreme Court precedent, but holds true to the original meaning of the Constitution.

The Fourth Amendment protects against unreasonable searches and seizures, and generally requires police to obtain a warrant before searching or seizing someone’s property. The Supreme Court has recognized several exceptions to the warrant requirement, however, including for automobiles—since they can be driven off at a moment’s notice, and are subject to manifold regulations, courts will allow police to search vehicles based on probable cause that a crime has occurred without first obtaining a warrant.

The court has also determined that police may not search the curtilage of a home (that is, the area immediately surrounding a home) without a warrant.

Finally, the court has established that when a Fourth Amendment violation is found, typically a judge-made rule called “the exclusionary rule” applies, which commands the trial court to exclude evidence that was obtained illegally.

This week, in Collins v. Virginia, eight members of the court agreed that when the automobile exception and protection of the curtilage collide, the latter wins the day.

An Albemarle County, Virginia, police officer walked up the driveway of a woman’s home to inspect what he believed to be a motorcycle that had been involved in two separate traffic violations and high-speed police evasions, and was likely stolen.

The officer confirmed that it was the motorcycle in question and that it was stolen, and later arrested Ryan Collins, who had left the motorcycle there at his girlfriend’s home.

At trial, Collins filed an unsuccessful motion to suppress evidence arguing that the officer’s search had violated the Fourth Amendment’s warrant requirement. Collins was convicted of receiving stolen property, and the Virginia Court of Appeals and Virginia Supreme Court affirmed his conviction.

The Supreme Court rejected the Virginia courts’ rulings this week. Writing for the majority, Justice Sonia Sotomayor called this an “easy case,” explaining that the “scope of the automobile exception extends no further than the automobile itself.” To find otherwise, she concluded, would “transform what was meant to be an exception into a tool with far broader application.”

Sotomayor left open for the state court to assess whether another exception to the warrant requirement, such as exigent circumstances, would apply to the warrantless search in this case.

Justice Samuel Alito dissented, remarking that the “hallmark” of the Fourth Amendment is reasonableness—and the police officer’s conduct here was “entirely reasonable.”

Where this case gets really interesting, though, is Thomas’ concurrence. He agreed with the majority that a Fourth Amendment violation had occurred, but wrote separately to express his doubts about the court’s ability to impose the exclusionary rule on state courts.

Thomas explained: “The assumption that state courts must apply the federal exclusionary rule is legally dubious, and many jurists have complained that it encourages ‘distort[ions]’ in substantive Fourth Amendment law.”

Thomas noted that the framers of the Fourth Amendment (as well as the 14th Amendment, which applied the Fourth Amendment to the states) “would agree that a constitutional violation occurred here,” but “they would be deeply confused about the posture of this case and the remedy that [the defendant] is seeking.”

Thomas asserted that excluding illegally obtained evidence is not the appropriate remedy, particularly where there was no historical support for such a remedy at the time of the Fourth Amendment’s passage. He explained:

No such rule existed in “Roman [l]aw, Napoleonic [l]aw[,] or even the [c]ommon [l]aw of England. … Historically, the only remedies for unconstitutional searches and seizures were “tort suits” and “self-help.”

As Benjamin Cardozo, then a New York Court of Appeals judge and later a Supreme Court justice, put it: The rule allowed “the criminal … to go free because the constable has blundered.”

Ever the originalist, Thomas encouraged the Supreme Court to revisit its 1961 decision in Mapp v. Ohio, requiring state courts to follow the exclusionary rule. Thomas noted that the rule is not “grounded in the Constitution or a federal statute,” so he questions how it may bind the states.

Only the Constitution, laws, and treaties are “supreme law of the land” that can bind the states. In his view, states should be free to enact their own exclusionary rules rather than being forced to adopt a rule created by federal judges.

Thomas summed up his concurrence by noting:“I am skeptical of this Court’s authority to impose the exclusionary rule on the states. We have not yet revisited that question in light of our modern precedents, which reject Mapp’s essential premise that the exclusionary rule is required by the Constitution. We should do so.”

In 1985, then-Attorney General Edwin Meese III said that the federal exclusionary rule “helps the guilty criminal, which is one of the tragedies … in our system of jurisprudence, where valid, probative evidence—the truth in other words—is excluded from a trial.”

Relaxing or rescinding that rule vis-à-vis the states would let them craft state exclusionary rules that might find a better balance between protecting defendant’s rights and public safety.

But the Constitution would not require the states to do anything.

The federal exclusionary rule was created as a matter of judicial policy “to deter future Fourth Amendment violations,” wrote Thomas, and the Supreme Court has “noted the lack of evidence supporting its deterrent effect,” while it has “recognized the effectiveness of alternative deterrents such as state tort law, state criminal law, internal police discipline, and [federal civil rights] suits.”

In light of those shortcomings, perhaps some states will now accept Thomas’ invitation to ask the court to rethink the rule. No other justice joined Thomas in making this call. That’s, perhaps, a reflection of the fact that Thomas is a “fearless originalist” who’s not afraid to clear out past cases that stand in the way of the original meaning of the Constitution.

Whether other justices would join Thomas if such a case arose remains to be seen. But one thing is certain: Thomas will continue laying the foundation for a return to the original meaning of the Constitution.

>>> Listen to “SCOTUS 101”: Elizabeth Slattery and Tiffany Bates bring you up to speed on their Supreme Court podcast.

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Democrat Obstruction in the Senate Is Hurting Our Courts

Our federal courts are facing a vacancy crisis like never before.

The number of judicial vacancies across the federal bench has averaged 142 so far this year. The only year that came close to this was 1991, which had an average of 138 vacancies—but that was shortly after Congress created 85 new judicial positions.

More than half of the current vacancies are designated as “judicial emergencies” by the Administrative Office of the U.S. Courts because of their longevity and their impact on the caseloads of other judges. This is a real vacancy crisis.

As of May 24, 33 nominees to the U.S. district courts and U.S. courts of appeal were pending before the full Senate after being approved by the Judiciary Committee. More than half of these nominees are slated to fill judicial emergency vacancies.

But if they’re emergency vacancies, why, you might ask, doesn’t the Senate just approve them already?

The confirmation process has two speeds: normal and slog. Not “slow,” but “slog.” This is the speed that results when the minority party uses various tactics to intentionally make the process as cumbersome and time-consuming as possible. It’s like trying to walk through molasses.

The confirmation process has been a slog almost since President Donald Trump took office. One of the tactics that Democrats are using is to force the Senate to take two separate votes on every nomination: one to end debate, and one to confirm.

Democrats have forced double votes on 95 percent of Trump’s judicial nominees so far. That’s compared to 8 percent of President Barack Obama’s nominees at this point, and a flat zero for Presidents George W. Bush, Bill Clinton, George H.W. Bush, Ronald Reagan, and Jimmy Carter. You could keep going back and the result would be the same.

This one tactic is a drag on the confirmation process in four ways.

First, since the votes needed to end debate and the votes needed to confirm are the same, there is no reason to take any votes to end debate. Second, the Senate has to wait two days to vote on ending debate after a vote is requested. Third, even after the Senate votes to end debate, there can be up to 30 more hours of consideration. And fourth, Democrats are forcing the Senate to jump through these hoops for nominees who have no opposition at all, and for more than a half-dozen originally nominated by Obama.

Even after debate is ended, Democrats are forcing the Senate to take a formal roll call vote to approve every single nomination. For context, in more than 200 years, at normal confirmation speed, the Senate used a roll call vote to confirm only 4 percent of judicial nominations. In yet another double standard, Democrats have forced a roll call vote to confirm 96 percent of Trump’s judicial nominations.

Why is this such a big deal? A roll call vote requires every senator to come to the Senate floor and takes an average of about 35 minutes. The normal way of approving nominations was by unanimous consent or a voice vote, which did not require the presence of every senator and could take about 35 seconds. It all adds up.

The bottom line is that nominations that used to be confirmed in a matter of hours now can take a week or more. When the confirmation process is at slog speed, it displaces much more of the Senate’s business and presents much more challenging choices for the majority leader.

Democrats have slowed the confirmation process to a slog because they can, but it’s taking a serious toll on the judiciary. Vacancies are now more than 30 percent higher than when Trump took office, and at the level they are today, the American people who must bring matters to the courts are getting shortchanged.

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Podcast: Minors at the Border

No, 1,500 illegal immigrant minors aren’t “lost.” But even so, things at the border aren’t great. The Heritage Foundation’s David Inserra joins us to break it down. Plus: Does the cancellation of “Roseanne” prove that there’s a double standard on TV networks?

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When Congress Doesn’t OK Government Rules, Both Ranchers and Conservationists Suffer

Until the Trump administration submits Obama-era land use rules to Congress for approval, those regulations aren’t actually in effect and can’t be enforced to protect a chicken-like bird in 10 Western states, a legal group argues.

And even if a government regulation benefits the public interest, a federal agency’s unwillingness to submit it for approval as required by the Congressional Review Act places the rule on tenuous legal footing that could undermine conservation efforts, two lawyers with the group say.

So their organization, Pacific Legal Foundation, headquartered in Sacramento, California, filed separate but related lawsuits on behalf of  ranchers in Idaho and a conservation program in Kansas.

Whether various interests argue an agency’s regulations are beneficial or harmful, those rules should face congressional scrutiny before going into effect, the lawyers told The Daily Signal in interviews.

To drive this point home, Pacific Legal Foundation filed both its suits at the same time in April.

Instead of allowing “unaccountable, unelected bureaucrats” to call the shots on federal rulemaking, Congress should have the final say in determining the merits of regulations that affect average Americans, the legal organization argues.

“If a court were to say that the Pacific Legal Foundation is correct and that the rules must be submitted to Congress,” Heritage Foundation expert Paul Larkin told The Daily Signal, “that would carry greater respect with administrative agencies than it would if the executive branch were to make this argument. A court ruling carries more weight.”

How the Law Works

President Bill Clinton signed the Congressional Review Act into law in 1996 after Congress passed the legislation under the leadership of House Speaker Newt Gingrich.

The law calls for regulatory agencies to submit every rule to both houses of Congress and the Government Accountability Office before the rules can go into effect. Congress then approves or disapproves the proposed rules with up-or-down votes decided by a simple majority.

Under the law, during the first 60 legislative days after receiving a rule, Congress may vote on resolutions of disapproval to overturn the rule without a Senate filibuster and with limits on the amount of time the Senate may take to debate.

A member of the House and Senate each would have to introduce a joint resolution of disapproval. Both the House and Senate versions are subject to a simple majority vote if acted upon within the 60-day window.

Congress sends approved resolutions to the president for his signature or veto. If the president signs, the rule is voided and any “substantially similar” rule may not be adopted in the absence of a new law authorizing it.

>>> Commentary: 10 Ways Trump Beat Back Excessive Regulation in 2017

Early last year, Pacific Legal Foundation joined with The Heritage Foundation, Competitive Enterprise Institute, and other partners in an effort called “Red Tape Rollback” to promote use of the Congressional Review Act to eliminate costly and illegal regulations.

“When Congress imposes a rule people don’t like, they can be voted out of office,” Jonathan Wood, a Pacific Legal Foundation lawyer who specializes in environmental law and property rights, told The Daily Signal. “But when bureaucrats impose these rules without democratic oversight, there is no way to hold them accountable.”

That’s why Wood is spearheading the two lawsuits calling for strict enforcement of the Congressional Review Act.

Protecting the Greater Sage Grouse

One of the legal cases challenges land use restrictions imposed by Obama’s Interior and Agriculture departments on federal lands to protect a chicken-like species of bird known as the greater sage grouse.

The latest figures from the Interior Department’s Bureau of Land Management show that the greater sage grouse occupies more than 170 million acres in 11 western states: North Dakota, South Dakota, Wyoming, Nevada, Oregon, Utah, Colorado, Montana, Idaho, Washington, and parts of California. Washington, however, is not affected by the regulations because its bird population is concentrated on private land.

Wood represents a cattle ranching operation in Oakley, Idaho, that could be subjected to federal restrictions on its grazing operations once the sage grouse rules are fully implemented.

On Sept. 22, 2015, Obama’s Fish and Wildlife Service announced that the greater sage grouse would not be listed as either threatened or endangered under the Endangered Species Act because of the cooperative efforts of state officials and private landowners.

But on the same day, the Agriculture Department’s Forest Service and another part of the Interior Department, the Bureau of Land Management, rolled out what Pacific Legal Foundation describes as “heavy-handed sage grouse regulations” that “impose severe restrictions on federal land use in the West.”

>>> Related: Lawyers Make Millions Off Taxpayers, Endangered Species Act as Ranchers Try to Live With Rare Bird

A listing under the Endangered Species Act would “have been even worse” than the land use rules, Todd Gaziano, Pacific Legal Foundation’s chief of legal policy and strategic research, said in an interview.

That law imposes restrictions on both public and private lands, while the land use rules apply only to public lands, Gaziano said.

Even so, the rules remain burdensome and problematic because for historic reasons most ranchers depend upon access to public land for a living, and the federal government controls most of the land in Western states, he said.

“That’s something people in the Eastern states don’t often understand,” Gaziano said, adding:

The federal government owns far too much of the land out West, but the concession Congress made in exchange for restricting available private property was to encourage and protect public use of the federal land by federal law.

Westerners purchased available homesteads and established their ranch boundaries with the expectation that they could reasonably rely on the vast federal lands that surrounded them for a significant portion of their grazing range. It’s fundamentally unfair to prevent most private ownership of Western land and then radically change the historic terms for the use of public land.

The Effect on Ranchers

The rules on the sage grouse undermine state-level conservation that benefited ranchers who rely on federal lands for their living, Pacific Legal Foundation argues in its suit:

Instead of considering the plans developed by the states, which took into account unique aspects of each individual state and its needs, the plans create a cookie-cutter approach that almost mirrors the stringent restrictions under the Endangered Species Act. This is despite the finding from the Fish and Wildlife Service that the greater sage grouse was not threatened or endangered.

Congress has repeatedly criticized the rules and tried to overturn them through the traditional legislative process. However, the agencies’ unlawful failure to submit the sage grouse rules has deprived Congress of its best opportunity to review—and strike down—the rule.

Wood represents brothers Douglas, Don, and David Pickett, who own the ranching operation in Idaho. Although the sage grouse rules have not been fully implemented, they have become a source of consternation for the three brothers, Wood told The Daily Signal.

“Last year, the Forest Service sent biologists out to study their allotment and grazing practices,” Wood said. “Based on that study, the Picketts’ allotment [of land] has been identified as valuable habitat for the sage grouse.”

“Consequently,” he said, “the Forest Service has already warned them that restrictions are coming, although they haven’t been announced yet. Of course, the resulting uncertainty also harms the Picketts, who have to make decisions today that affect grazing two, three, or five years down the road.”

Good Rules Beset by Uncertainty

The other legal case involves a conservation plan in Kansas set up to keep a bird called the lesser prairie chicken off the endangered species list.

An alliance of county governments called the Kansas Natural Resource Coalition developed the plan, which the Fish and Wildlife Service made possible through a rule called the Policy for Evaluating Conservation Efforts When Making Listing Decisions. This PECE rule, as it is widely known, promotes conservation initiatives at the local level where government officials, property owners, and environmental groups collaborate to meet goals.

Although the program benefits from a broad cross section of support, there’s one problem: Interior did not submit the PECE rule to Congress.

“Unlike the sage grouse rules, the PECE rule is a popular, bipartisan, and successful conservation rule,” Pacific Legal Foundation’s Wood said, adding:

Congress shouldn’t use the Congressional Review Act to shoot it down. But the agency’s failure to submit the rule is still problematic. It means that the rule cannot lawfully go into effect and, thus, no one can rely on it.

The basic idea behind PECE is to provide incentives to states, property owners, and environmental groups to work together to conserve species. It rewards those efforts by avoiding the need to list the species under the Endangered Species Act. This cooperative approach has played a critical part in the decision to avoid listing the lesser prairie chicken, which are found throughout five central states [Kansas, Oklahoma, Texas, New Mexico, and Colorado].

Environmentalists have long pushed for the lesser prairie chicken and other species in the Permian Basin to be listed under the ESA [Endangered Species Act], which would shut down energy production. So far, those efforts have failed because the PECE rule has successfully encouraged collaborative conservation efforts to protect the species, while avoiding the need to list them.

The Permian Basin is an oil- and gas-producing region extending across the Western part of Texas into Southeastern New Mexico.

‘Catch-22’ Until Rule Submitted

Despite the success of the PECE rule, the Interior Department’s failure to submit it to Congress creates a level of uncertainty on the part of local residents who have demonstrated a willingness to participate in conservation initiatives, Wood laments.

“Until the agency submits the rule, our clients are in a Catch-22. They must show their conservation plan is certain to be implemented and succeed at protecting the species,” he said.

“But, by not submitting the rule [to Congress], the agency has taken away the main incentive for people to participate, making it much more difficult for our client, the Kansas Natural Resource Coalition, to show that certainty. Until the rule is submitted, any listing decision based on it is vulnerable to litigation. We are trying to save the agency from itself by dealing with this problem proactively and avoiding more, unnecessary litigation down the road.”

So why doesn’t Interior just submit the rules at issue?

“Do you know how easy it would be for the federal government to end our lawsuit [in the PECE case]?” Gaziano asked. “They just need to send the rule to Congress. No one is going to overturn it, because everyone likes it, and Trump could threaten to veto if there is an effort to try an overturn it.”

“Our clients will be happy, we’ll be happy, the federal government doesn’t even need to admit there is anything wrong.”

The Daily Signal asked the Interior Department why the agency simply would not submit the rules for congressional approval; the agency referred the request to the Justice Department.

A Justice Department public affairs official, Wyn Hornbuckle, responded in an email message: “As is our general policy, the department declines to comment on matters that are in active litigation.”

The Daily Signal also asked the Forest Service why it would not submit the rules for congressional review. Dru Fenster, the agency’s acting national press officer, said in a phone message that it doesn’t comment on pending or ongoing litigation.

Congress Reasserts Authority

Last August, Interior Secretary Ryan Zinke announced his intention to press ahead with reforms to the sage grouse rules.

In cooperation with governors, the Bureau of Land Management developed proposed reforms that were published earlier this month. The bureau will take comments on these proposals until Aug. 9, then publish a final environmental impact statement and land use plan amendments by October.

Larkin, a senior legal research fellow with The Heritage Foundation who has written extensively on the Congressional Review Act, said he is pleased to see members of Congress reasserting their authority over agencies by sinking rules they view as misguided.

“The whole point of the Congressional Review Act is to nullify bad rules before they go into effect,” Larkin said. “As a general matter, I would say it is certainly appropriate for private parties to challenge rules that were not submitted to Congress.”

Larkin identifies four different scenarios where the law is applicable. One involves a set of rules the Trump administration would like to see overturned; another involves rules that are viewed as beneficial but are in need of congressional approval.

Agencies also have the option to withdraw rules on their own, and private parties such as Pacific Legal Foundation may litigate to force agencies to seek congressional review.

Wood said the Kansas case demonstrates that the problem of noncompliance with the Congressional Review Act isn’t limited to enforcement of controversial rules that Congress likely would strike down if given the opportunity.

The failure of agencies to abide by the law “needlessly puts a cloud of uncertainty” over beneficial rules with popular support, the Pacific Legal Foundation lawyer said.

“There is a segment of the environmental movement that does not like the PECE rule,” Wood said. “They favor heavy-handed regulation and litigation, an approach that creates conflict but fails to accomplish real conservation.”

“However, there are a lot of conservation groups that participate in these conservation plans. They too have a stake in ensuring that the rule is submitted to Congress as required by the Congressional Review Act, so that their work can continue.”

Gaziano said he isn’t sure why the Trump administration has not moved to end the lawsuits by simply submitting the rules to Congress.

In the case of the greater sage grouse, he speculated, the administration might be concerned Congress will not overturn the rules.

“But that’s not how the law works,” Gaziano said. “It’s not up to an agency to decide whether Congress will or will not overturn a rule submitted under the Congressional Review Act. Once any rule is submitted, the next step is up to Congress. There could be a debate, pressure, concessions. That’s called democracy. That’s called compromise and accountability.”

The post When Congress Doesn’t OK Government Rules, Both Ranchers and Conservationists Suffer appeared first on The Daily Signal.

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