As every American citizen knows, our Constitution explicitly says lawmaking is the sole responsibility of...what?
Congress.
The Constitution doesn't give the president the power to make or change laws, but instead orders the president to "take care that the Laws be faithfully executed." (Article 2 section 3 if you wanna check.)
If a president instructs or allows an Executive-branch agency changes a law, that clearly violates the Constitution, and any judge who is honest and understands the clear and unambiguous meaning of the Constitution (and trust me, many of them don't) should quickly agree.
Unfortunately, well over half the judges now on the bench are eager to support a clearly unconstitutional rule or act
if it advances the interests of the Democrat party.
If you find that hard to believe, here's example #956,034:
In the late 1960's Americans were beginning to recognize that pollution was a huge problem. Environmentalists pressured congress to do something, but congresscritters had a hard time finding Constitutional authority to regulate industries--something that had been regarded as a state responsibility.
But liberals hit on a workaround: Interstate commerce often moved by river, and the Constitution explicitly gave the federal government the sole right to regulate interstate commerce. So based on that power, congress declared that it had the power to regulate all "navigable waters" in the country. From there it was an easy jump to claim the power to control all uses of such "navigable waters," as well as any discharge into such waters.
In 1972 congress formalized this decree by passing the "Clean Water Act." But within weeks the communists in the Deep State EPA began trying to expand the definition of "navigable waters" to include EVERY molecule of water in the country.
Anyone who understands English knows that the term "navigable waters"
means bodies of water large enough to be used for transport by ships.
But the usual meaning of words meant nothing to Democrats bent on grabbing more power. So as early as 1973 the EPA simply declared that "navigable waters" really included "...all
other waters such as intrastate lakes, rivers, streams (including
intermittent streams),
mudflats, sandflats, wetlands, sloughs,
prairie
potholes,
wet meadows, playa lakes, or natural ponds.
Now, for the courts to accept this breathtaking power grab, the EPA would have to show that when congress used the term "navigable waters," they actually meant the bizarre, illogical definition the EPA was now claiming. This was...difficult, and the U.S. supreme court repeatedly rejected it.
But radicals in the EPA kept coming up with new rationalizations, hoping one would persuade the court. Among the absurd arguments the EPA has used, they've claimed they had the authority to regulate ponds that
were not linked to any river and were entirely within a single state because...wait for it...those ponds were used by migratory
birds. Since the birds flew across state lines, the EPA claimed that
allowed it to regulate the pond under.. the Interstate Commerce clause!
Another absurd claim made by the EPA to try to control lakes entirely
within a single state (thus hardly "navigable waters" was that since
lakes, rivers, and streams were often used by residents of other states
for recreation, this brought them under EPA regulation because of the
Interstate Commerce clause.
Still another claim the EPA tried was that
since fish caught in a lake lying entirely within one state could
conceivably be sold in another state...Interstate Commerce, thus EPA
could regulate.
I'm not kidding. These claims have been made by the agency, in federal courts.
In a rare victory for common sense, the U.S. Supreme Court rejected all these obvious efforts to expand the agency's power. But the wackos in the EPA kept trying, regardless of which party won the presidency.
The most recent attempt came in June of 2015, when Obama authorized the EPA to declare that
any seasonal stream of water--including marshes and wetlands--would now be considered “navigable waters,” making them subject to EPA control.
Like the earlier efforts noted above, this was a breathtaking power-grab, especially in light of prior Supreme Court rulings that seemed to bar exactly this action.
Of course a rational person would think that if one president could unilaterally change the law to do X, a subsequent president could undo that change, right? And Trump did indeed try to undo Obama's unconstitutional--and repeatedly court-denied--power grab. The rollback to the original definition was published in
the Federal Register on February 6, 2018--and of course you can guess what happened.
A member of the professional litigator class immediately sued to block the rollback. And as has happened with so many other efforts to put the liberal genie back in the bottle, yesterday a federal judge in South Carolina
ruled that the Trump administration didn’t give proper notice when it rolled back Obama’s “Waters of the United States (WOTUS)" rule.” Which means the EPA and Corps of Engineers
will continue to regulate all private property that contains a mud flat, wet meadow, intermittent stream, pond or
drainage ditch, on the absurd claim that these are "navigable waters."
The EPA has used this power to levy a huge fine on farmers who sought to reduce erosion of topsoil by contour-plowing their land. Since erosion is a huge problem, this seems quite reasonable. But with characteristic government efficiency, the EPA said it wasn't permitted.
Under the definition pushed by Obama's EPA, any part of a farmer's field that could collect seasonal water is subject to EPA regulation. Farmers have been fined even for moving dirt from a high area to a low one, or for applying fertilizer or
pesticide to their crops without getting EPA permission first
According to this ruling, Trump is bound not by the wording of the law, but by Obama's decree changing it.
Specifically, the judge ruled that the Trump rollback violated a thing called the "Administrative
Procedure Act" (APA), which requires public notice for any changes to
regulations and to articulate the reasoning behind the change. Of course you'd think that publication of the change in the Federal Register would be notice, but apparently...well, who knows?
Ironically, the APA was designed to prevent agencies from making administrative rules that were unlawful, but is now being used against Trump
when he simply reinstates the policies that were in place for decades
before Obama unilaterally changed them.
Unintended consequences, maybe?
===
If you have a strong stomach for legal bullshit, here's a link to one case
that slapped down the EPA when it first tried to claim it had the legal authority to regulate every bit of water in the U.S
Here's a release from the EPA from 2008, after a different court slapped them down for the same reason. You'll see that the pencil-neck socialists reiterate their bullshit claim that "navigable waters" includes every drop of water in the country, and say they're "studying the opinion and may provide additional guidance on the issue."
Translation: As soon as we can find a friendly judge in a different circuit, we intend to try again. Of course the election of Da Won made things infinitely easier, cuz no one was willing to buck the Divine Emperor.
