A Stunning Supreme Court case has surfaced and it could change everything.

XANDREWX – November 23rd, 2022


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Do The Leftist Women Rallying Against This Legal Theory Realize It Gave Them The Right To Vote?

Do The Leftist Women Rallying Against This Legal Theory Realize It Gave Them The Right To Vote?

In the upcoming case Moore v. Harper, the U.S. Supreme Court will decide whether the term “state legislature” in the U.S. Constitution’s election clause gives state legislatures specific power over election law that cannot be taken away in accordance with the doctrine of “independent state legislature theory.” 

In this case, the Supreme Court is asked to decide whether the independent state legislature theory applies to the Constitution’s election clause. The case asks the court to decide whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives … prescribed … by the Legislature thereof” and replace them with regulations of the state courts’ own devising. The Constitution’s election clause reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

Notably, the Framers considered an alternative election clause proposal, the “Pinckney Plan,” which would have said, “Each State shall prescribe the time and manner of holding elections by the people…” and not use the term “legislature.” Pinckney’s text was not adopted in the election clause.

Leftist women’s groups have responded by launching a hyperbolic campaign against the doctrine. League of Women Voters’ CEO Virginia Kase Solomón claims, “The Independent State Legislature Theory is a dangerous, fringe ideology that leaves voters effectively defenseless from harmful election laws.” But what these women’s groups fail to mention is the U.S. Supreme Court relied on independent state legislature theory to grant women the right to vote over a century ago. 

The 19th Amendment to the U.S. Constitution says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” On June 4, 1919, the U.S. Congress passed the proposed amendment, but in order for a proposed amendment to become part of the Constitution, Article V requires ratification by “three fourths of the several states.” On Aug. 18, 1920, Tennessee became the 36th state (of the union’s then total 48 states) to ratify the 19th Amendment, satisfying the three-fourths requirement.

But a few months later, in Leser v. Garnett, Oscar Leser filed a lawsuit to prevent women from registering to vote by challenging the validity of the amendment’s ratification. He argued that the state constitutions of Tennessee and West Virginia did not grant their state legislatures the power to ratify. Without those states, the proposed 19th Amendment would not have sufficient support to satisfy the three-fourths requirement. To decide this question, the U.S. Supreme Court used independent state legislature theory. Under Article V, proposed amendments must be “ratified by the legislatures of three fourths of the several states.” Because the framers specifically used the term “legislature,” the court held that “the legislatures of Tennessee and of West Virginia had the power to adopt the resolutions of ratification.” 

The minimum number of ratifications was met, so the court held that the 19th Amendment “has become valid to all intents and purposes as a part of the Constitution of the United States.” In so holding, the court explained that a legislature’s “function … in ratifying a proposed amendment to the Federal Constitution … is a federal function derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a State.” As Florida State University Law Professor Michael T. Morley explained, a state constitutional provision purporting to prevent the legislature from ratifying certain amendments to the Constitution would be unenforceable.

League of Women Voters, National Council of Jewish Women, and Republican Women for Progress, who have filed amicus briefs in opposition to independent state legislature theory, are really seeking to impose their own leftist and/or partisan agenda without the consent of the governed. Adopting the textualist doctrine would take away their tools to circumvent and override state legislative action in elections. Such tactics include the refusal of attorneys general to defend redistricting maps or state election laws passed by legislatures in court, getting judges to deny legislatures the ability to intervene to defend their maps, seeking court-ordered redistricting maps, forum shopping for a judge to strike down election integrity laws, and using the courts to gain partisan advantage in redistricting. 

Instead of going through the publicly transparent and accountable legislative process for making and changing election laws, these advocacy groups forum shop for a favorable judge who will strike down laws passed by state legislatures. As a result, election administration is tied up in litigation when state election officials need to have time to prepare to run the elections. The courts should not be used to implement radical changes that would never survive scrutiny under the more transparent and accountable state legislative process. 

Opponents of women’s suffrage attempted to use the courts to deny the right to vote to women. But independent state legislature theory was applied by the Supreme Court to preserve the 19th Amendment. It’s shameful that leftist and partisan women’s groups — who claim to advance the interests of women voters — have forgotten.


Maya M. Noronha is a civil rights lawyer and visiting fellow at Independent Women’s Law Center.

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No, Affirmative Action In The Military Doesn’t Boost National Security, It Erodes It

No, Affirmative Action In The Military Doesn’t Boost National Security, It Erodes It

The Supreme Court will soon consider Students for Fair Admissions v. Harvard/UNC. The court’s decision will determine whether our military’s future leadership will consist of the “best-qualified” individuals instead of simply those “qualified” as defined by an ever-moving standard meant to accommodate political and cultural goals. 

Affirmative action, in the form of racial preferences, pervades today’s military despite federal law that, if enforced, would prevent it. Section 601 of the Civil Rights Act of 1964 prohibits racial “discrimination under any program or activity receiving Federal financial assistance.”  Racial preferences in the military also violate our Constitution’s Fifth Amendment Due Process Clause.  

Department of Defense (DOD) surrogates speciously have argued to the Supreme Court that the DOD’s use of racial preferences in service academy admissions is “mission critical” and “indispensable to” national security. That strategy was contrived only because of the legal framework courts must use when examining practices that violate the Constitution. Evidence must clearly prove a “compelling state interest” sufficiently strong to justify the drastic measure of suspending the constitutional provision that prohibits such practices.

DOD’s surrogates made their preferences-are-essential-to-national-security argument first in 2003 in Grutter v. Bollinger. Unrebutted, that far-fetched claim misled the Grutter majority into a falsely predicated, 5-4 decision authorizing the limited, narrowly tailored use of racial preferences in college admissions for the sole purpose of gaining the “educational benefits of diversity.” The DOD thereby gained some of the judicial cover it sought for its racial preferences practices in service academy admissions.  

Veterans for Fairness and Merit (VFM), an organization that has 627 members, 21 Medal of Honor recipients, 45 POWs, 119 general officers (12 four-stars and 25 three-stars), with 934 combat tours, 476 combat leader positions held, and more than 900 combat valor awards to its name, filed an amicus brief in Harvard/UNC to correct the record based on their first-hand experiences.

Our military most assuredly can defend America without resorting to extra-constitutional practices that require suspension of the Equal Protection Clause and Section 601. To claim otherwise is disingenuous. The racial demographic parity of enlisted officers — if that’s what “critical officer diversity” means — is unnecessary for our military to be combat-effective.  

Our warfighters respond to their leaders regardless of race. Sub-group identities are inconsequential to the selfless servant, “colorblind” warrior. Mission accomplishment, however, requires the best-qualified leaders.

DOD’s race preference practices far exceed the limited use Grutter envisioned. At West Point,     to fulfill “class composition goals,” marginally qualified applicants are admitted, displacing better-qualified Asian and White applicants. Substantial differences in attrition/graduation rates and performance measures predictably result. Because of this, our warfighters are denied the “best-qualified” officers.

DOD’s brazen use of preferences to pursue parity is “racial balancing,” a practice the court has repeatedly held “patently unconstitutional,” regardless of the “diversity” label.

Like VFM (which condemns all forms of racism), a substantial majority of Americans oppose the use of racial preferences in college admissions. Pew Research found that 74 percent of Americans, including 59 percent of blacks, polled in March 2022 agree that race should not be used in college admissions.

DOD further dilutes quality by using racial preferences in some assignment and promotion activities. DOD denials notwithstanding, these practices weaken merit and, over time, reduce leader quality, erode morale, undermine unit cohesion, and compromise combat effectiveness.  

Preferences also demean high-performing minorities, whose self-esteem demands confidence that the recognition they receive is earned, not bestowed in pursuit of social justice. In an affirmative action environment, they are also deprived of the presumption of competence that should accompany selection: Their peers and subordinates don’t know whether a promotion was earned or the result of preferences.

Unity in our pluralistic society has been our strength. What unites us, most fundamentally, is our Constitution, the “rule book” that citizens and officers alike agree to follow. Losing that focus, and eroding military leader quality, would invite our potential adversaries to calculate that we can be defeated, increasing the risk of being drawn into conflict. We do so at great peril.

Warfighters deserve the best-qualified leaders available, regardless of race, always. Providing them is a moral and national security imperative.

DOD’s disingenuous claim that racial preferences are essential to national security and its costly failures always to choose “best qualified” leaders violate the American people’s trust. We can do better. Following the Constitution and Section 601’s plain wording would be the right place to start.


Gen. Ronald R. Fogleman, USAF, ret., is a former Air Force Chief of Staff, Air Force Academy graduate, and member of Veterans for Fairness and Merit. Claude M. McQuarrie III is President of Veterans for Fairness and Merit, a West Point graduate, former Infantry officer, and attorney.

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Lawsuit Offers SCOTUS A Chance To Smack Down Biden’s ‘Unconstitutional’ Student Loan Bailout

Lawsuit Offers SCOTUS A Chance To Smack Down Biden’s ‘Unconstitutional’ Student Loan Bailout

A Wisconsin-based legal group filed an emergency application with the U.S. Supreme Court on Wednesday, asking the high court to issue a temporary injunction against President Joe Biden’s unconstitutional student loan bailout program.

Filed by the Wisconsin Institute for Law & Liberty (WILL) on behalf of the Brown County Taxpayers Association (BCTA), the application asks Justice Amy Coney Barrett, who oversees emergency-related matters from the 7th Circuit (which includes Wisconsin), to temporarily halt Biden’s program while lower-level federal courts decide its legality.

“Given the impending unconstitutional actions by [the president], [WILL] respectfully requests emergency consideration of this application,” the document reads.

Announced by Biden back in August, the “One-Time Student Loan Debt Relief” plan seeks to “cancel” up to $10,000 in student loans ($20,000 for Pell Grant borrowers) for those with annual incomes of less than $125,000. In its application to Barrett, WILL argues that there is “no legal justification” for Biden’s proposal and that it is a “presidential usurpation of the constitutional spending power, which is reserved exclusively for Congress.”

“The President has transformed a law designed to benefit military personnel and first responders who have been disadvantaged by their response to a discrete national emergency into a warrant to transfer hundreds of billions, or perhaps over a trillion, dollars in debt onto taxpayers,” the document reads. “But these student-loan borrowers have not been disadvantaged by their service to the country, or for that matter, anything at all.”

“To the contrary, the President contends this authority exists because, in his sole judgment, and notwithstanding that the need to make loan payments has long been suspended, the COVID-19 pandemic may have made repayment more difficult for some (but not all) recipients of his largesse,” the application continues.

In attempting to justify the legality of the program, the administration has routinely cited the HEROES Act, a law passed in the wake of the Sept. 11, 2001, terrorist attacks and intended to help U.S. military service members by permitting the executive to waive loans in “connection with a war or other military operation or national emergency.”

As The Federalist previously reported, “the Education Department has attempted to rationalize that the ‘COVID-19 pandemic’ fulfills the HEROES Act’s definition of a national emergency, despite Biden himself declaring the pandemic to be ‘over’ during a recent ’60 Minutes’ interview.” Although the administration officially began beta testing the proposal on Friday, the Education Department has yet to provide a release date for the program’s final version.

“What Constitutional power does Biden have to take John Q. Public’s money and pay Jane Q. Public’s school loans?” BCTA President Rich Heidel said in a WILL press release. “Why not her mortgage, why not her car loan? How did the college-educated caste become the lucky ones? When and how does this stop? This nonsense not only defies the US Constitution – it defies common sense!”

A lawsuit making similar arguments was previously filed by WILL and BCTA earlier this month in a federal district court, but was ultimately dismissed by the judge for lack of standing. After having their request that the 7th Circuit Court of Appeals intervene in the matter denied, the case now remains on appeal at the 7th Circuit.


Shawn Fleetwood is a Staff Writer for The Federalist and a graduate of the University of Mary Washington. He also serves as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood

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Texas A&M Faculty Senate Votes To Exclude Asian Job Applicants To Hire People With Preferred Skin Colors

Texas A&M Faculty Senate Votes To Exclude Asian Job Applicants To Hire People With Preferred Skin Colors

The Texas A&M University faculty senate on Monday endorsed an affirmative-action program that is currently under legal scrutiny for using taxpayer dollars to hire non-white and non-Asian staff members.

Despite a class-action complaint filed against TAMU on Sept. 10 alleging that the university’s Accountability, Climate, Equity, and Scholarship (ACES) Plus program violates federal law “prohibit[ing] universities that accept federal funds from discriminating on account of race or sex,” faculty senators at TAMU voted 54-12 in support of the project.

According to a memo from Annie McGowan, vice president and associate provost for diversity,
and N. K. Anand, vice president for faculty affairs, sent by the university’s leadership in July, the program will receive $2 million over the 2023 and 2024 fiscal years to match the salary and benefits of “new mid-career and senior tenure-track hires from underrepresented minority groups.” The memo defines underrepresented minorities as “African Americans, Hispanic/Latino Americans, Native Americans, Alaskan Natives, and Native Hawaiians,” but does not include Asians on the list.

This program, the TAMU officials say, is designed to “contribute to moving the structural composition of our faculty towards parity with that of the State of Texas.”

Sidelining qualified white and Asian candidates in favor of fulfilling racial quotas, both the complaint and some senate faculty members say, is a massive legal liability for the school and constitutes discrimination.

“If you are serious about supporting the ACES Plus program goal of moving the structural composition of our faculty to parity with the state of Texas, then we are effectively supporting the replacement of two-thirds to three-quarters of our Asian faculty solely because of their race,” faculty senator Adam Kolasinski, a professor of finance at TAMU, explained before the senate’s ACES vote. “If you support this resolution, I ask you which three-quarters of your Asian colleagues do you want to get rid of?”

According to Kolasinski, supporting this program effectively eliminates potential Asian faculty from hiring eligibility “for like the next decade.”

“By the way, that’s what the ACES Plus program does. It creates new faculty positions to which no Asians need apply,” Kolasinski said.

Kolasinski also expressed concern about the university doubling down on a policy that is a clear legal liability to the school and has yet to be decided in court. The professor’s words of warning, however, were met with backlash from other TAMU faculty senators who called them “extraordinarily offensive.”

“I am almost speechless,” faculty senator Angie Hill Price, the associate dean for undergraduate programs and an associate professor of engineering technology and industrial distribution, replied. “I think that that was extraordinarily offensive, but you’re entitled to your opinion and to your freedom of speech and I appreciate the fact that you have that.”

In addition to shorting potential Asian hires, the lawsuit says the university is violating Title VI and Title IX of the federal Civil Rights Act and the 14th Amendment’s equal protection clause by creating and isolating some faculty positions specifically for those racial groups deemed “underrepresented” by TAMU.

That, the complaint states, is evidenced by an email exchange between a professor, whose name is redacted, and the Thomas W. Leland Memorial Chair in Finance Shane A. Johnson. In the exchange, Johnson confirmed his department reserved a faculty spot for an “underrepresented minority.”

“The underrepresented line would potentially be a third position, so yes reserved, but not one of our ‘regular’ positions,” Johnson wrote.

The TAMU diversity and faculty offices did not immediately respond to The Federalist’s request for comment, and though The Federalist received an initial reply from a communications spokeswoman, she did not offer a comment by deadline.

While the TAMU case plays out, the Supreme Court is mulling over another affirmative action case that could decide how all publicly funded universities approach race-based admissions. In Students for Fair Admissions v. Harvard, the high court will determine if Harvard, which receives federal funding, can continue turning down admission for large numbers of Asian students in the name of “diversity” and reserving spots for people of other skin colors.


Jordan Boyd is a staff writer at The Federalist and co-producer of The Federalist Radio Hour. Her work has also been featured in The Daily Wire and Fox News. Jordan graduated from Baylor University where she majored in political science and minored in journalism. Follow her on Twitter @jordanboydtx.

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Will The Supreme Court Finally Put The Kibosh On Harvard’s Race-Based Admissions?

Will The Supreme Court Finally Put The Kibosh On Harvard’s Race-Based Admissions?

As the Supreme Court gears up to review Students for Fair Admissions v. Harvard later this year or early next, students, parents, and policy advocates eagerly await a final ruling on whether universities will continue to be able to discriminate against Asian American applicants. Originally filed in 2014 by a coalition of Asian Americans rejected by Harvard University, the lawsuit has the potential to completely shake up the current modus operandi of college admissions in America.

There are several legal principles at play within any college admission system. Harvard receives federal funding, meaning it must comply with the Civil Rights Act of 1964 (which bans any discrimination on the basis of race). Furthermore, the 1978 Supreme Court case Regents of the University of California v. Bakke banned the explicit use of racial quotas in the college admissions process. However, later cases clarified that a “whole person review” is legal: colleges are allowed to consider various aspects of a person’s background beyond just race, but they cannot simply admit a student because of their race. Finally, in 2016, the Supreme Court ruled in Fisher v. University of Texas that colleges could only make use of race-conscious admissions protocols if they could prove such protocols were the only way to meet diversity goals.

The Students for Fair Admissions lawsuit centers around alleged racial discrimination conducted by Harvard in the interest of maintaining a diverse student body. “Diversity,” of course, is a common buzzword in 2022 that few individuals dare question in public. After all, who would still be welcome in polite society after expressing opposition to “diversity”? And Harvard’s general defense centers around this same theme: of course diversity is a compelling interest for our community, scholarship, and student body. We want students of all backgrounds to be able to contribute to campus culture. Don’t you?

But the reality is much more nefarious. What Harvard calls “diversity” is, in practice, discrimination against Asian Americans for the sake of allowing other varieties of minorities in at inflated rates. Some of the statistics put forth by the plaintiff are startling: if Harvard admitted students based on academic merit alone, Asian Americans would make up almost 50 percent of the student body (as opposed to approximately 20 percent currently). Even more incredible? A black applicant to Harvard in the fourth-lowest academic decile has a higher chance of admission than an Asian American in the very top decile. What Harvard pitches as a commitment to diversity is truthfully a race-based benefit program for non-Asian and non-white students who can’t score high enough to compete on academic merit alone.

Harvard’s Defense

Harvard denies using any racial quota, and there are no best practices at Harvard strictly stating that Asians can’t exceed 20 percent of the student body (at least as far as we know). But Students for Fair Admissions argues that Harvard’s holistic review process is in effect a soft quota that provides cover for their racist admissions process. Harvard uses multiple data points to evaluate prospective students: grades, test scores, extracurriculars, alumni interviews, and legacy status. But they also use a vaguely defined “personality score,” which Asian Americans consistently score poorly on despite having the highest marks from alumni interviews and teacher recommendations (and where else would they demonstrate their “personality?”). Non-Asian minorities typically score very well, thus boosting their overall score and making up for any deficiency in merit measured academically or otherwise.

Harvard has no explanation for why this discrepancy exists. At best they can stereotype Asian Americans as excessive studiers who lack sufficient personality, with Duke economist Peter Arcidiacono, who evaluated the Harvard applications, saying that Asians are disproportionately likely to get Harvard’s “standard strong” moniker, which he claims means “good but not good enough.” Taken in conjunction with the statistical data provided by the plaintiff, it becomes very difficult for Harvard to deny the obvious: they simply don’t want too many Asians on campus and will do whatever it takes to keep them out.

Outlook

While it remains to be seen how the Supreme Court will rule on the case, earlier context favors the student plaintiffs. Even Chief Justice John Roberts, a “swing vote” in the court, vociferously opposed affirmative action in earlier rulings, stating that “the only way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Whatever the decision, it will drastically affect the future of college admissions and the value of individual achievement versus collective group identity. In an America increasingly focused on the color of one’s skin as opposed to his merit, character, and individual contributions, SFFA v. Harvard is an open field where the Supreme Court can plant a flag rededicating the nation to the ideals of colorblindness and individual achievement that made us so great in the first place.


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4 Years Ago, SCOTUS Failed To Protect Artists From Compelled Speech. It’s About To Get Another Chance

During its new session, the Supreme Court will have a chance to reassess the Colorado law that has entangled Masterpiece Cakeshop owner Jack Phillips in a decade-long legal battle for his First Amendment rights.

Lorie Smith, owner of the small graphic design business 303 Creative, is challenging the Colorado Anti-Discrimination Act (CADA), which prohibits public accommodations from restricting services based on sexual orientation. It’s the same law that brought Phillips before the Supreme Court in 2018 for declining to make a cake for a same-sex wedding and continues to cause him legal trouble.

Though Phillips won his 2018 case, the ruling never addressed the core question: Can the government compel artists to speak against their convictions? Instead, it narrowly found that the Colorado Commission of Civil rights demonstrated “clear and impermissible hostility” against Phillips’ beliefs and did not give his claims “neutral and respectful consideration.”

So Phillips is still in court for other cases, and artists like Smith still face consequences under CADA.

Can Colorado Force Lorie Smith to Create Speech that Violates Her Conscience?

Smith wants to design websites for weddings that align with her religious belief that marriage is the union of one man and one woman. But under the state’s law, she would also be forced to create websites for same-sex marriages. Her case, which the U.S. Court of Appeals for the 10th Circuit ruled against in July 2021, contends that the act compels her to express messages with which she does not agree, violating the First Amendment.

Smith chooses her projects based on the message, not the person. The 10th Circuit court agreed: it acknowledged that Smith is “willing to work with all people regardless of sexual orientation” and did not question her “good faith.”

Yet, the court determined that CADA must stand because unique goods like her art are “where public accommodation laws are most necessary to [ensure] equal access.”

According to the majority opinion, “a faith that enriches society in one way might also damage society in [an]other, particularly when that faith would exclude others from unique goods or services.” As such, CADA “permissibly compels” speech.

Smith says her case is about standing up for everyone’s ability to speak freely.

“Just as I don’t want to be forced to say something contrary to my core convictions, I don’t believe anyone else should be, either,” she wrote in a July column. “For example, an LGBT designer shouldn’t be forced to create a website promoting the Catholic Church’s beliefs about marriage, and a Democratic artist shouldn’t be forced to design posters promoting the Republican Party.”

The dissent agreed with Smith, calling the majority ruling “unprecedented.”

“The Constitution neither forces Ms. Smith to compromise her beliefs nor condones the government doing so,” wrote Chief Judge Timothy Tymkovich. “In fact, this case illustrates exactly why we have a First Amendment.”

“Like Nineteen Eighty-Four’s Winston Smith, CADA wants Lorie Smith to not only accept government approved speech but also to endorse it,” he wrote.

A Chance to Protect Artists Like Lorie Nationwide

The Supreme Court accepted Smith’s case on Feb. 22, 2022 and will hear oral arguments in the fall. Alliance Defending Freedom (ADF) attorneys filed their opening brief on behalf of Smith with the Supreme Court in May.

“Forcing artists like painters, photographers, writers, graphic designers, and musicians to speak messages that violate their deeply held beliefs fails to comport with the First Amendment’s promise of ‘individual dignity and choice,’” they argue.

“We’re hopeful that a win for Lorie would produce a win for Jack,” Jonathan Scruggs, ADF senior counsel and director of the Center for Conscience Initiatives, told me. “But a lot depends on not just what the court rules in the end, but how it gets there.”

Phillips’ latest case—brought by transgender activist Autumn Scardina, who sued after Phillips declined to make a custom cake with a blue exterior and pink interior to symbolize gender transition—went before the Colorado Court of Appeals for oral arguments last Wednesday. Last year, a trial court ruled against Phillips.

Depending on its scope, Scruggs said the 303 Creative v. Elenis ruling could have a “big effect” in other states where officials are also interpreting the law to compel speech. ADF has represented many artists in similar situations.

“We’re currently representing a photographer in New York state that lost in the district court below, but we were representing a photographer in Kentucky who won,” he said. “So [the case] would clear up that confusion, and I think protect a lot of people.”

Looking at who filed amicus briefs is a good way to tell where states fall, Scruggs said. Twenty states have filed an amicus brief in support of Smith, while 21 states, plus the District of Columbia, have filed a brief in support of Colorado. 

“So what you see is, on the one hand, a great example of states interpreting their laws and applying their laws consistent with the First Amendment,” he said. “On the other hand, you have a group of states that are currently and have interpreted their laws to compel speech, forcing people to say things that violate their core convictions.”

While the specific impact depends on how the court rules, on the whole, Scruggs said a ruling in favor of Smith would “establish the basic, core principle that you can’t force someone to say what they don’t believe.”


Katelynn Richardson is an English major at the University of Nevada, Las Vegas. She is a correspondent for Campus Reform and contributor to The College Fix. Follow her on Twitter @katesrichardson.

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No, Dry Land Isn’t ‘Navigable Water’ For Federal Bureaucrats To Regulate, And SCOTUS Must Say So

No, Dry Land Isn’t ‘Navigable Water’ For Federal Bureaucrats To Regulate, And SCOTUS Must Say So

The Supreme Court recently kicked off this term with oral arguments in Sackett v. EPA, a blockbuster environmental law case that could provide property owners with long-overdue clarity regarding the enjoyment of their land.  

To understand the facts of the controversy is to sympathize with the petitioners. In 2004, Chantell and Mike Sackett purchased a 0.63-acre vacant lot near Priest Lake, Idaho, with the intention of building their family home. After obtaining all necessary local permits, the Sacketts began construction. But shortly after starting preliminary earthmoving activities, government officials entered the lot and said to the Sacketts’ construction workers that the homesite contained “wetlands” subject to federal regulation as “navigable waters” under the Clean Water Act. 

One could forgive the Sacketts for being surprised. Located in a mostly built-out residential subdivision, their property contains no bodies of water. Nor does the lot include any surface water connections to any body of water. To the north, there lies a county-operated road; to the south, east, and west, there sit residential buildings. Despite the absence of water and the prevalence of surrounding development, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) claim that soggy pockets of the Sacketts’ property are “navigable waters” and are therefore subject to regulation under the Clean Water Act. If a picture is worth a thousand words, then an aerial snapshot of the Sacketts’ property speaks volumes about federal regulatory overreach. 

In asserting jurisdiction, the EPA and Corps rely on a convoluted causal chain that would make Rube Goldberg proud. According to the agencies, the Sacketts’ proposed homesite is subject to the Clean Water Act permit because: Priest Lake is navigable water; a non-navigable creek connects to Priest Lake; the non-navigable creek is connected to a non-navigable, man-made ditch; the non- navigable, man-made ditch is connected to wetlands; these wetlands, though separated from the Sacketts’ lot by a 30-foot-wide paved road, are nevertheless “similarly situated” to wetlands alleged to exist on the Sacketts’ lot; and these alleged wetlands on the Sacketts’ property, aggregated with the wetlands across the street, bear a “significant nexus” to Priest Lake. If your head is spinning after that explanation, you’re not the only one.

Slippery Standard

The key to federal power lies in that last step of the agencies’ attenuated logic — the impossibly amorphous “significant nexus” concept. Notably, this slippery standard is a judicial creation. 

In the 2016 case Rapanos v. United States, the jurisdictional scope of the Clean Water Act was squarely before the court, but no opinion garnered a majority. A plurality opinion authored by Justice Antonin Scalia argued that only those wetlands that have a continuous surface water connection to regulated waters may themselves be regulated. A concurring opinion by Justice Anthony Kennedy advanced a different and much broader test, allowing for regulation of wetlands regardless of any surface connection, so long as the wetlands bear an (undefined) “significant nexus” with traditional navigable waters, and the significance of that nexus would be based on aggregating all similar property in an unspecified area. Thus, unlike Scalia’s test, the significant nexus test requires no hydrological connection of any quantity, nor does it limit jurisdiction to those wetlands that are inseparably bound up with adjacent waters.

As Scalia correctly predicted, the “perfectly opaque” significant nexus test “is not likely to constrain” regulators. For this precise reason, the EPA and Corps, in the immediate wake of the Rapanos decision, quickly adopted Kennedy’s capacious standard as their own. Accordingly, in 2007, the agencies applied the significant nexus framework to determine that the Sacketts’ property fell within their regulatory ambit. 

Sacketts Challenge Claimed Authority

Believing that their lot does not contain “navigable waters,” the Sacketts (with the help of the Pacific Legal Foundation, where I work) challenged the agencies’ claimed authority. In response, the agencies moved to dismiss the suit, arguing that, before they could sue, the Sacketts first had to comply or wait for the government to enforce the $75,000 daily penalties that were accruing. The district court granted the agencies’ motion and the Ninth Circuit affirmed. In 2012, however, the Supreme Court granted certiorari and reversed the circuit and district courts’ decisions. In holding that the Sacketts could have their day in court, the unanimous court admonished the agencies for their “strongarming of regulated parties.”

On remand, the district court (again) sided with the government, ruling that the agencies have the authority to regulate the Sacketts’ property under the significant nexus test. The Sacketts (again) appealed, and the Ninth Circuit (again) affirmed. But the Supreme Court (again) granted certiorari, and now the Sacketts are before the court for the second time in a decade. 

Broad Implications

The immediate stakes, of course, are whether the Sacketts may build their dream home. For more than 15 years, the Sacketts’ plans have been on hold, and, at long last, the end of their ordeal is in sight. 

Yet the overall implications of this case are much broader. That’s because the Sacketts’ plight is emblematic of all that has gone wrong with the implementation of the Clean Water Act since the Supreme Court’s decision in Rapanos. Under the prevailing jurisdictional test, “[a]ny piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act,” as Justice Samuel Alito has explained. Even the agencies concede that “almost all waters and wetlands across the country theoretically could be subject to a case-specific jurisdictional determination” under the status quo. 

In practice, a “significant nexus” is whatever the agencies say it is. There’s no way for hapless landowners to know if they’re potentially subject to the Clean Water Act’s civil and criminal penalties — unless they can afford hundreds of thousands of dollars for consultants and attorneys necessary to have a fighting chance at disproving jurisdiction under the significant nexus test and getting that determination to hold up in court. Few have such resources.

Even when landowners do have the necessary means to defend their property rights, they remain reluctant to proceed without permits, given the crushing consequences if their assessment of jurisdiction proves to be wrong. Here, it bears noting that Justice Kennedy, the progenitor of the “significant nexus” concept, subsequently expressed concern with the agencies’ “ominous” application of his idea, which “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.” 

Although it’s a fool’s errand to prognosticate the court’s outcomes, multiple justices during oral arguments expressed discomfort with the significant nexus standard. Justice Elena Kagan, for example, allowed to the petitioners’ counsel that, “I … understand some of your points about” the seemingly limitless test.

For a statute that touches on millions of acres of land, the lack of clarity is both dismaying and counterproductive. In Sackett v. EPA, the Supreme Court can and should chart a better course for the Clean Water Act by articulating a clear, easily administered, constitutionally sound rule for wetlands jurisdiction, using the surface-water-connection test set forth in the Rapanos plurality opinion. Just as the court bears responsibility for creating the “significant nexus” framework, so the court has a duty to end it, and thereby provide long-needed regulatory certainty to property owners.


William Yeatman is a senior legal fellow at Pacific Legal Foundation, a public interest law firm dedicated to the principles of individual rights and limited government.

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