Long Conference was today. No significant orders were released today. However, a new Circuit Allotment was released today, assigning Justice Jackson to the 1st Circuit, previously occupied by Justice Breyer. Could get some additional orders on Thursday or Friday if they grant new cases, otherwise the regular order list will come out Monday morning.
First case of the term is a big one, Sackett v EPA. A victory, as expected, for Sackett will reign in the Waters of the United States rules significantly.
Tuesday, there will be a significant Voting Rights Case involving redistricting in Alabama.
One week hence Tuesday, there will be the California Pork case. I believe that the Supreme Court will rule that California cannot make demands of producers in other States, due to the Dormant Commerce Clause.
One week hence Wednesday, the Supreme Court will have a chance to correct stupidity from the Fifth Circuit regarding overtime exempt and overtime non-exempt employees.
While it will be extremely hard for the court to top last term, I suspect this will be a very interesting term.
First regular order list of the term, 48 pages long, 9 new cases granted.
Sackett v EPA was heard this morning, as well as Delaware v Pennsylvania and Wisconsin, an original jurisdiction case that seeks to clarify the status of MoneyGram checks. Delaware has been taking uncashed MoneyGram checks via escheatment. The VERY rare original jurisdiction case that has not arisen from a water war.
Navigable Waters of the United States includes portions of inlets and rivers subject to the ebb and flow of the tide and those portions of rivers that are used or have been used in the past in interstate or foreign commerce.
In historical context, that has NEVER included waters upstream of the navigable area or adjacent or connected to navigable waters. Only the actual navigable waters.
Congress could write a statute regulating these waters on another grounds, but as it stands, the Sacketts should prevail.
I certainly hope so. The COE (with extreme pressure from the EPA and the NWS) has a stranglehold on Alaska re. wetlands. They classify more than 90% of the State as “waters of the United States.”. The call lichen covered gravel deposits in the Arctic and highlands as that you could walk on in your bedroom slippers without getting them wet as “wetlands” simply because the water table is within 18" of the surface during the growing season. That water they are calling “water table” is permafrost ice.
I don’t blame them. That case was a loser when the order was challenged by GOA. Regardless of the lack of merit in Trump’s ban, even most ardent gun rights advocates knew that bump stocks are not arms under the protection of the Second. Amendment. As long as I have a thumb and a belt loop, I can still waste ammunition to my heart’s content.
Thankfully it is not a major issue in North Carolina. The limits of the Navigable Waters of the United States are long established and well known. And the State of North Carolina uses the “navigable in fact” test to determine the status of rivers upstream from NWOTUS. There are precise points where “navigability” is considered to begin and thus precise points where non-navigable rivers become navigable. All the rivers and brooks up in this corner of Surry County are non-navigable and thus private property unless they run through a public park or public right of way. I have several brooks running across my property that drain to the Fisher River. My private property, subject to North Carolina statute. But at least I don’t have to worry about the EPA breathing down my neck.
The regs regarding navigable waters of the US are wholly separate from those regarding wetlands. However, both are a serious problem in land use issues.
Today’s order list. No new grants. One interesting denial, that being Dylann Roof v United States. That officially ends his direct appeals. Now begins years of collateral appeals and habeas corpus appeals.
I wholeheartedly support the Petitioners in this case. The California regulations are a gross violation of the Dormant Commerce Clause as they severely impact the pork industry in every State and thus burden interstate commerce.
Cato’s amicus brief in the case. In addition to the Dormant Commerce Clause issue, I also concur with Cato’s view regarding the Principal of Territoriality. Essentially, California is trying to enforce a burdensome law nationwide without the consent of the people of the other 49 States and the District of Columbia, thus violating the principal of federalism.
Part of me sits back and views it as California is NOT imposing any standards outside of California. They are imposing standards of sale for products INSIDE California.
There are already numerous labeling requirements and it seems that the market should decide. California should be able to have a labeling standard such as “California Compliant” and producers would then be free to accept or reject those standards as part of the labeling process. Producers would apply to California to authorization for their labeling through an application and it would be up to California to determine an approval and renewal process. Maybe simple certification, maybe a video submission of production facilities, maybe onsite visits of California inspectors.
We already have things such as (see link above):
Free Range
No Hormones
No Antibiotics
Organic
Natural
Kosher | Hala
Since compliance with production is voluntary (outside of California), then those that choose to comply with the California requirements would be able to pass additional costs to the people of California. Let them stew in their own juices as it were. Those that produce without California compliance would still be able to produce for the other 49 states and for export. As a matter of fact (well opinion really), based on supply and demand what one could expect is that costs for uncooked pork products inside California would rise sharply, however uncooked pork products not intended for the California market would fall. Why? Because product originally intended for California that can no longer go there would be sold on the markets for the remaining states. Increasing supply there and therefore lowering prices.
I would note that today’s oral arguments strongly suggests that the Petitioners will prevail. Even Justice Kagan and Justice Jackson were very skeptical of Proposition 12 and sympathetic to the arguments being made by the Petitioners and by the United States Solicitor General who participated as an amicus in support of the Petitioners. And yes, the Biden administration was on the correct side in this case.
I am very confident of a victory for the Petitioners.
