Sock it to Sackett—the Real Defiance of the Courts

The French Defense

Is it just me, or do Democrats seemingly scream “constitutional crisis” whenever a Republican is president?

When someone named Donald Trump is president, they capitalize and exclaim it, too: “CONSTITUTIONAL CRISIS!”

That’s what Chuck Schumer did this week, but before him there were The New York Times, The New Republic and a bevy of others. Time outdid them all, saying that Trump was so authoritarian that we had sailed beyond a constitutional crisis, even if the writers never quite got around to telling us where that was.

Maybe to right back where we started. Now that Trump is obliterating the Democratic machine, and in particular its federal bureaucratic infrastructure, progressives have retreated to their Maginot Line, a wagon-circling camarilla of circuit judges who attempt to control federal policy nationally—well, right now, to keep the bureaucratic state from completely imploding—from within tiny slivers of local jurisdiction.

In this narrative, Trump is defying the courts, and thus destroying the rule of law and the separation of powers, and crashing the constitution on the shores of totalitarianism.

You gotta admit, it’s a good fantasy. After decades of a massively collectivizing federal bureaucracy in which both the Supreme Court (through the now defunct Chevron doctrine) and Congress ceded virtually all judicial and legislative power to what was an unelected fourth branch of government, as Georgetown law professor Jonathan Turley has described it, which in turn has worked to defeat the policy aspirations of the elected president through deliberate inertia and resistance, through independent agencies accountable to no one, and through the iron wall of civil service, along the way collecting so much power for the collectivist monster that it has effectively ruled the nation with an iron fist—after all that the Democrats now think we have a constitutional crisis, all because an elected official wants to do what he promised the people who elected him he would do.

That’s a long run-on sentence, I know, but it’s been a long run-on journey to bureaucratic collectivism in this country. Undoing it demands defiance, and it certainly must be dramatic.

Not that the Trump administration has actually defied any court, even that of old comrade judge James Boasberg, who had ordered the government to turn around planes in the air carrying migrants back to Venezuela. The administration says the planes were over international waters when the judge spewed out his order, and so it didn’t apply, but our judge, not content with seizing control of government inside the United States, said his power was global: 

“My equitable powers are pretty clear that they do not lapse at the water’s edge,” Boasberg boasted at a hearing.

So is it Comrade Boasberg or King Boasberg? Or both?

To be sure, the administration was ignoring the judge, and, in that case and others, it is testing the boundaries of what it can do. Defying court orders really wouldn’t help Trump so much as it would serve as distraction—the administration’s mission is to get some of these cases in front of the Supreme Court, and as quickly as possible—but ignoring court orders in an exercise of what is legally and practically possible is an entirely different creature. It’s judicial rope-a-dope, Trump-style.

It’s also true that Trump and his administration have talked tough about judges. Trump called for Boasberg’s impeachment, and Vice President JD Vance asserted just before taking office that the courts simply have no power to interfere with a president’s rightful authority.

“If a judge tried to tell a general how to conduct a military operation, that would be illegal,” Vance wrote on X. “If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal. Judges aren’t allowed to control the executive’s legitimate power.”

That suggests defiance but no more so than past presidents, including Presidents Barack Obama and Joe Biden. Remember all those Biden schemes to forgive student loan debt? Losing in the high court didn’t stop Biden from scheming about ways to get around the court—that is, to defy it—and he said as much: “The idea that the Supreme Court told me I couldn’t do it, I couldn’t forgive student debt. I found out a way.”

What’s more, a federal appeals court accused Biden of engaging in actual straight-up defiance after a district court enjoined the president from providing loan forgiveness for borrowers under Biden’s SAVE plan. As the Eighth Circuit put it, “[d]espite the district court’s injunction, the Government continue[d] to forgive loans for borrowers enrolled in SAVE.”

And while the administration said its “hybrid” plan passed muster, it cobbled together different provisions of two different programs to effectively achieve the same result the court struck down. Here’s how the court put it:

You say null, I say nil, but we all say defy. Constitutional crisis!

Other presidents have defied the courts, or threatened to do so. All of this is well reported and none of it is a constitutional crisis, but these days the media is fixated on explaining how Trump’s testing of the limits of presidential power is different from any other president’s attempts. The history of the United States is in part a history of the struggle between the president and the courts.

Thomas Jefferson famously distrusted the courts, especially the Supreme Court as final arbiter of the constitution. He put his objections this way in an 1820 letter to Charles Jarvis:

In the context of today’s federal circuit judges acting like tinpot dictators without jurisdictional boundaries (judges without borders), we should underline Jefferson’s caution that the judges’ maxim is “good justice is broad jurisdiction.”

Meanwhile, while the media focuses on all things Trump, there’s another effective branch of government actively defying the courts, and this branch has been brazenly doing so for generations, namely, the aforementioned federal bureaucracy. Now that the Chevron shield of its power is gone, and the president is rampaging through the bureaucratic tangle, slashing his way through woke thickets, diversity deadwood, progressive pencil pushers, and cubicle communists, the entire bureaucracy is exposed.

Still, that doesn’t mean the administrative state is going quietly into that good night, and one of the weapons in its arsenal is—wait for it—defiance of federal courts. As they have for decades, the bureaucracy works hard to undermine court decisions, at least the few and far between decisions that actually go against its wishes. It continues to do so now that Trump is president.

Hello Darkness, My Old Friend

Here’s an all-too-common example. To defy the conditions of a warrant issued by a federal judge is to defy the judge and his or her court, and that is exactly what happened in a current case, Martin v. FBI.

Actually, it happens all the time, and has for years, but you won’t be reading about it from the reporters who are busy screaming about a constitutional crisis driven by the fantasy of Trump’s defiance of courts.

In the case, Linda Martin, who committed no crime and wasn’t even suspected of committing one, is suing the FBI for seizing her life savings in violation of the terms of a search warrant, and for stonewalling the return of her cash for two years after the court caught the FBI on said violations.

Court or no court, the agency held on to her money until she filed a class-action due process lawsuit.

Martin is represented by the Institute for Justice, and their brief tells the story. In March 2021, the FBI seized more than $100 million dollars from hundreds of customers at U.S. Private Vaults, a private safe-deposit box company. One of those belonged to an innocent bystander: Linda Martin.

“Although the investigation was focused on the business, and the warrant expressly forbade a criminal search or seizure of box renters’ property, the FBI did just that as part of a pre-formulated plan to forfeit any property worth more than $5,000, including customers’ belongings,” Martin’s brief states.

In fact, the IJ wrote in the brief, the FBI’s focus was U.S. Private Vaults’ customers.

“As early as the summer of 2020, more than six months before the raid, FBI agents talked about forfeiting the ‘assets they expected to find within the [customers’] safe deposit boxes,’” the brief states. “FBI agents were confident the local field ‘office could handle a large-scale seizure.’ By February 2021, the month before the raid, agents decided they had ‘probable cause to seize the contents of the safe deposit boxes.’”

And yet, when the FBI asked a federal judge for a seizure warrant against U.S. Private Vaults, it failed to mention all those forfeiture plans, IJ asserts. Accordingly, the judge signing the warrant issued the following warning:

“This warrant does not authorize a . . . seizure of the contents of any safety [sic] deposit boxes. In seizing the nests . . . , agents shall follow their written inventory policies . . . [and] inspect the contents of the boxes in an effort to identify their owners in order to notify them so that they can claim their property.”

The FBI did no such thing. Instead it seized $40,200 that Martin had in her safe-deposit box, money she had saved up for buying a house. Her attorneys compared the seizure as akin to seizing property from individual apartment units because the tenants’ landlord was suspected of criminal wrongdoing.

Ultimately, as Martin’s brief explained, the Ninth Circuit held that the FBI violated the warrant’s terms, as well as Martin’s and other’s Fourth Amendment rights. Even then, she didn’t get her money back for two years, until she filed the current class-action lawsuit over due process violations. Talk about defiance.

A Defiance of a Different Color

Now one can argue that defying warrant conditions is not the same as defying a judge’s order to turn those planes around; after all, a normal warrant isn’t usually a major issue like deportation of illegal aliens with suspected gang ties.

Still, defiance of a judge’s order is defiance of a judge’s order—seems like a major issue in and of itself—no matter whether it’s about deporting illegals or smacking gum in the courtroom. Certainly, it was a major issue for Linda Martin, who had been unjustly deprived of her life savings by the FBI.

Even if it’s not on the same level, what about hot-button regulatory decisions that have controversially been visited and revisited by the high court for decades? What about the Clean Water Act, and the government’s concerted effort to bring virtually all waters—even imaginary waters—under its auspices for purposes of controlling the land adjacent and near it?

In those efforts, the Environmental Protection Agency (EPA) has been accused in multiple venues of ignoring a decisive Supreme Court ruling, and an ongoing case shows how just how the gigantic agency decides what court orders it will obey, at least how it did so during the Biden regime.

The answer is, it obeys only the ones its bureaucrats agree with, or that it can evade without getting caught.

West Virginia, Coming Home

In 2023, the Supreme Court handed down a resounding 9-0 decision for property owners challenging the definition of “Waters of the United States” (WOTUS) under the Clean Water Act in a case known as Sackett II.

WOTUS are those waters under federal jurisdiction and regulation—most waters are managed by the states, but the EPA has been trying for decades to secure federal control for as much as it can. That obvious land grab ended up with the Sackett decision, and, while the property owners prevailed unanimously in the specific case, a vote on the new definitional regulatory criteria for WOTUS was a lot closer, 5-4.

Nonetheless, a court majority held that federal jurisdiction extends only to relatively permanent bodies of water such as streams, oceans, rivers, and lakes connected to traditional interstate navigable waters, and to wetlands that have a continuous surface connection with those waters.

The Biden administration had been following a far more expansive definition, vastly expanding the waters (and imaginary waters) subject to federal regulation.

Last September, Courtney Briggs, the senior director of government affairs for the American Farm Bureau Federation (AFBF), offered testimony to a U.S. House Committee on Transportation subcommittee that the Biden administration wasn’t followed the court ruling and in fact agency implementation memos—to use her exact words—“defy Sackett.”

After the court decision, Briggs testified, the EPA issued field guidance policy memos that she said “functionally expand the scope of federal jurisdiction in violation of Sackett.”

“Much of what little direction the agencies have provided the regulated community and public in the form of these memos directly conflicts with Sackett and operates as quasi-rulemakings in disguise, in violation of the Administrative Procedure Act (APA),” Briggs testified. “These memoranda are precisely the kind of regulatory overreach the APA was designed to prevent. …. It’s like pouring muddy water into clear streams and pretending no one will notice—these memos are clearly being used to set broad policy under the guise of specific guidance on WOTUS regulations.”

More specifically, Michigan Farm Bureau senior conservation specialist Laura Campbell said the EPA had issued guidance to staff that water separated by physical barriers such as roads should be considered one jurisdictional water and had also directed staff to continue to regulate wetlands whose only connection to a jurisdictional water was adjacency to another wetland.

“This does not follow the court’s instructions that significant nexus cannot be used to determine waters to be connected and therefore jurisdictional, and that waters with clear physical barriers between their surface flows and jurisdictional waters cannot be considered jurisdictional,” Campbell told the Michigan Farm News.

As Campbell stated, those memos were released after the court decision, and directly contradicted that decision. A wetland adjacent to a wetland connected to navigable interstate water might have a significant nexus, or significant impact, to that water, but the court rejected it for a continuous surface connection standard instead.

Bear in mind that none of this means adjacent unconnected wetlands are unregulated, as unhinged environmentalists would have people believe, it just means regulation falls to the state, not to the federal government.

Not a One Off, but Core Strategy

The deafening silence of the press on bureaucratic defiance of the highest court in the land is especially phenomenal given how widespread the defiance is. Over in West Virginia, for example, a property owner is appealing a district court order that also allows the EPA to ignore the Supreme Court’s Sackett decision.

“In Sackett II, the Supreme Court clearly defined how the federal government can enforce the Clean Water Act,” said Frank Garrison, an attorney at Pacific Legal Foundation (PLF), which is representing the West Virginia property owner. “But the EPA has continued to ignore those guardrails and drive straight off the cliff. The EPA must follow federal law, not make up the rules to pursue its own agenda. Our client is fighting to see that it does.”

In the case, according to the PLF brief, Ron Foster bought 90 acres of commercially zoned land near Parkersburg, West Virginia, in 2009 as a retirement investment. A year later, PLF states, without permission, EPA inspectors charged onto his property and accused him of violating the Clean Water Act by filling four natural dips that occasionally channeled rain or snowmelt.

After nearly 15 years of legal battles, a federal court ruled in favor of the EPA, ordering Foster to pay $800,000 in fines and mitigation costs.

As PLF observes, all that was before the Sackett ruling. Indeed, such cases aptly demonstrate why the significant nexus test that had reigned before Sackett had to be put out to pasture: when the government considers small natural hollows or dimples that occasionally fill up with rain to be waters subject to federal regulation, you know they have gone off the rails.

The original Sackett case was even more absurd. Incredulously, the federal government maintained that the location of Sackett’s proposed house was in fact a navigable water subject to federal regulation.

Here’s the punchline: None of the Sacketts’ property contained any stream, river, lake, or similar waterbody. That’s what I mean by “imaginary waters.”

So how does dry land become navigable water in the eyes of the EPA? Just jump the shark and it’s perfectly clear: Over yonder somewhere was Priest Lake, a truly navigable water, and of course a non-navigable creek connected to Priest Lake, which in turn connected to another non-navigable, man-made ditch, which in turn connected to wetlands, which in turn were separated from the Sacketts’ lot by a 30-foot-wide paved road.

Those latter wetlands, the government reasoned, were “similarly situated” to dry wetlands alleged to exist on the Sacketts’ lot, though nobody could see them, and those imaginary wetlands on the Sacketts’ property, when aggregated with the wetlands across the street, formed a “significant nexus” to Priest Lake.

Yeah, I know.

So Sackett was needed and the majority was clear as a bell about what could be considered waters subject to federal regulation under the Clean Water Act.

The absurdities in Foster’s case run pretty deep, too. In this instance, the EPA, through guidance issued before Sackett, found that a small intermittent stream on his property—with water about four months of the year—exited the property’s western boundary and entered a neighbor’s hayfield. That hayfield, the EPA alleged, joined a creek, which joined another tributary, which flowed into a navigable water.

According to the EPA, that made the small stream, and three others on Foster’s property, regulable.

Not so, and not even close, PLF argues.

For one thing, the PLF brief states, the “stream” does not flow more than half the year, and so lacks the “ordinary presence of water” required for regulation, and the hayfield is not an extension of the stream because the stream loses all its features of a stream when it reaches the hayfield.

“Under Sackett’s ordinary parlance test, no reasonable person using common sense would describe the middle of a hayfield—lacking any bed, bank, or ordinary high water mark, as part of a ‘stream, river, ocean or lake,’” the brief states. “The hayfield is simply a field where [the stream] ends.”

Third, the brief continues, the stream lacks any connection to a traditional navigable water, the nearest of which was more than three miles away.

“The discontinuity of [the stream] in the hayfield severs any arguable hydrological connection to any traditional navigable water,” the brief states. “Absent such a connection to a traditional navigable water, [the stream] is at most an isolated intrastate water which, … the CWA does not regulate.”

Finally, PLF argues, the district court failed to apply the background canons of construction required by Sackett when assessing EPA’s asserted jurisdiction.

“Regulating an intermittent ‘stream’ that ends in a hayfield raises serious federalism and due process concerns,” PLF asserts. “Sackett requires Congress to speak clearly if it intends to authorize such expansive federal authority over local land use and to criminalize ordinary conduct. No such clear statement exists here.”

The case is ongoing. There’s no knowing how the Trump administration will respond, but it’s worth noting that, under Lee Zeldin, this will be a different beast in court, and one for the better (hopefully) in cases like this.

Defiance Squared

There are two critical takeaways from what is going on. First, as mentioned before, federal agencies, when it suits their agenda, have been defying courts for decades, and cases such as Sackett and Foster are quintessential examples.

The WOTUS issue has been before the high court three times, and after each decision, the EPA has issued “guidance” documents mandating policy in brazen defiance of the court decision. The first case was in 1985, in United States v. Riverside Bayview Homes, in which the court’s limited federal wetland jurisdiction to wetlands abutting traditional navigable waters. The EPA ignored it.

That led to Solid Waste Agency of N. Cook County (SWANCC) v. United States Army Corps of Engineers in 2021 (SWANCC), which struck down the EPA’s ongoing expanded jurisdiction. But as, PLF points out in its brief, the agencies simply ignored the court again and “continued to assert jurisdiction over traditional navigable waters, their tributary systems, and waters neighboring traditional navigable waters and their tributaries.”

That led to a third trip to the Supreme Court, in Rapanos. By now the court was so fractured that no one opinion gained a majority, but Rapanos did give birth to the idea of a significant nexus, and off to the races the EPA went. All of which led to Sackett, which of course has not slowed the bureaucracy down one iota, if the Foster lawsuit is any indication.

The EPA’s lawlessness in its Clean Water Act regulations is just the tip of the iceberg, not only within the agency but across the federal landscape. If reporters would like to report on a real threat to the rule of law and the legitimacy of the courts, they should investigate the collectivist bureaucracy’s ongoing defiance of those courts.

The second major point emerging from the Foster case is that not only is the EPA defying the Supreme Court, so is the federal district court. As PLF attorneys point out, the district court revisited the case after the Sackett II decision. Because of the ruling, the agency withdrew its findings on three streams but still found the stream running to the hayfield to be a “navigable water.”

The court let that stand, despite the Sackett ruling. It also left in place almost the entire civil and mitigation penalty that it had originally ordered, PLF states. In making its finding, PLF points out, the court engaged in no new legal analysis under Sackett to validate its earlier finding.

That sounds like deliberate defiance of the Supreme Court. The tinpot dictators of the district courts are in many cases not just running interference for the bureaucracy to derail Trump, but, where needed, running cover for the bureaucracy to help buck a more conservative Supreme Court.

That may or may not be a real constitutional crisis, but it’s a far more serious issue than the supposed due process rights of planeloads of alleged gang members.

This is defiance squared and it could ultimately mean the deconstruction of our republic if it is not exposed and stopped. It can be stopped only by doubling down with our own deconstruction of the deep state bureaucracy and its judicial partners in the federal district courts.