Agencies overstep their legislative authority

TRACKSIDE © by John D’Aloia Jr. January 14, 2003

How can we give up a bit more freedom today? One way is to allow arrogant, power-seeking government agencies to overstretch their legislative authority - and get away with it because those who could take them down a peg or two refuse to do so.

Remember The Clerks’ "Glancing Duck Theory?" (If a migrating bird can land on a puddle, the puddle is navigable waters of the United States and subject to regulation under the Clean Water Act.) Remember the January 2001 Supreme Court decision that said The Clerks were all wet in their use of migrating birds to extend their power over bodies of waters that had no connection to navigable waters? (In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, the court upheld a precedent definition of "adjacent" to mean contiguous, destroying The Clerks rationale for regulating any puddle anywhere.) Remember one of the prime rationales for three branches of government? (One branch’s excesses can be reined in by the others to keep the entire government within constitutional limits, preventing the creation of a tyranny.)

How did the EPA and COE Clerks respond to the court’s ruling? They ignored it, providing more evidence that we have in existence today, defacto, a fourth branch of government - the myriad alphabet soup agencies which for all intents and purposes act as independent fiefdoms, not subject to any checks and balances on their attempts to gain power and dominion over society. The agencies, many lacking a constitutional basis for existence, are nominally under the Executive Branch. For whatever reasons, unmanageable size being one, the Executive Branch is unable to exert control over the wanna-be tyrants and Guardians in the agencies. Congress, the Legislative Branch, refuses to bring them to heel - the agencies represent a venue for congressmen to exert and extend their power and develop constituencies for reelection.

Well, what about the Judicial System, you ask. Certainly the courts can stomp on The Clerks and thus restore the concepts of justice and equity. Think again. Two factors work against the courts being effective tools to restore sanity to the system. All too often the courts defer to the judgement of the agencies as to what a law means, especially in those cases where the agencies’ actions and interpretations are furthering the personal goals of judges who do not believe in constitutional constraints. The agencies, by their actions, demonstrate a belief that they are above the law, knowing that it is unlikely that the Executive Branch will take any action to force them to comply or send them packing, out on the street looking for productive employment. The Supreme Court said that The Clerks pushed the very "limit of congressional authority" by using migrating ducks to tie inland puddles and ponds to navigable waterways. The court held that the federal government did not have the authority to regulate intrastate waters that were not contiguous to navigable waters. This ruling did not constrain The Clerks. They did nothing to change their policy or rules that were based on their discredited legal theory. In fact, they continued to bring court suits attempting to impose their rules and penalties on people based on what is, in the eyes of the Supreme Court, an illegal interpretation.

The Pacific Legal Foundation, in its December 2002 "Guide Post" and on its web site,, described several cases in which The Clerks were ignoring the Supreme Court. In "U.S. v. Newdunn Associates," the trial court ruled for the landowner, noting that a wetland on private property is not connected to navigable water by multiple drainage ditches and miles of non-navigable water. The Clerks are appealing. In the same trial court, The Clerks then attempted to exert authority over wet fields and forests ("U.S. v. RGM Corporation") by claiming that miles of man-made dry ditches provided the tie to navigable waters. The court ruled against The Clerks, noting "[their contention]...would set a dangerous precedent that almost any ditch in America could be construed as a public waterway under federal jurisdiction."

The breadth of the Clerks’ lust for power is illustrated by two cases: "Tulloch" and "Borden Ranch Partnerships." In both cases, The Clerks claim authority over all plowing that occurs in what might be wetlands based on the "fall back" theory - when you plow, dirt falls back and if it falls back into any wetland, a Clean Water Act permit must be obtained. "Tulloch" and "Borden" are direct attacks on private property, agriculture, the Xth Amendment - and your freedom.

See you Trackside.


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