Slouching towards Nineveh

 Our Federal District Court: Slouching towards Nineveh – is undue judicial deference to administrative power subordinating the public and natural interest?

In One With Nineveh— Politics, Consumption, and the Human Future, authors Paul and Anne Ehrlich remind that the once grand and green Assyrian city of Nineveh in Mesopotamia disappeared as a partial result of the decline of its resource base, including deforestation. This was referred to as “ecological suicide” by Jared Diamond (in his The Collapse of Civilizations).  One hopes that our more educated, complex civilization is not also headed in that direction. However, current indications continue to give pause and the attempts to preserve the north woods at Crown Hill Cemetery are a case in point.

On January 13, 2017, U. S. Second District Chief Judge Jane Magnus-Stinson issued an order denying Plaintiffs’ Motion for a preliminary injunction against the Veterans Administration which had been previously filed by several parties aligned with the Alliance of Crown Hill Neighbors and the Indiana Forest Alliance. The Judge’s 26-page order resoundingly rebuffs and dismisses the claims and concerns of the plaintiffs. Much of her rationale for denying the injunction was based on case law precedent sustaining the appropriateness of judicial deference to the administrative agencies.

Fortunately, the department of veterans Affairs VA, with a newly-appointed Secretary (David Shulkin) and the encouragement of two Indiana legislators, decided in May to modify its cemetery plan by selecting another nearby (adjacent) non-forested site, thus avoiding the destruction of the mature forest and its inhabitants.

I was one of the eight plaintiffs in the lawsuit and was disappointed in the Court’s adverse decision.  In the intervening period, I’ve been ruminating about it and reading two books by an expert on administrative law.   Columbia law Professor Philip Hamburger is critical of the administrative state and to excessive legal deference to administrative agencies.  See The Administrative Threat (2016) and Is Administrative Law Unlawful (2014).

It’s important to note that Judge Magnus-Stinson is a widely respected jurist, and our Judiciary is entitled to high respect.  It’s a vital element of our constitutional system based on separation of powers and checks and balances.  In our constitutional republic, the courts have an important role to, in effect, hold the other two branches in check.

Because I have no legal education, I’m reluctant to substitute my judgement and personal opinions for that of a respected chief judge, her appointed magistrate, and their legal staffs who are trained legal analysts.  Yet, I believe there are reasonable questions to be asked about the decision— at least from the point of view of a forest- and public-interest preservation-minded lay person. As Edward Abbey reminds, “Where the means of communication fall within the control of a tightly centralized monopoly, free speech becomes a meaningless gesture, a useless privilege When and if the opportunity does come, one must make the most of it or betray thy neighbors and thyself.”  (Source: Vox Clamantis in Deserto, A Voice Crying in the Wilderness, 1989)

Also, there are related questions about the two pieces of federal legislation which supposedly provide protection for the environment (National Environmental Policy Act– NEPA) and for the interests of citizens challenging agency actions (the Administrative Procedures Act — APA).  Those questions are for another time, but in general, the concerns which seem most pertinent are 1) why did NEPA provide no protection for the woods in this case?  2)  why does the APA provide such limited scope of review, and 3) and why, according to the decision’s cited judicial precedents and the standards of review provided by the APA, is supposed “substantial agency expertise entitled to judicial deference”, i.e. not to be re-evaluated by a court?

The larger overarching question for me is:  if the Plaintiffs had such a weak legal case, according to the decision’s cited principles of law and case law precedents, and its dismissive, critical language about the merits of Plaintiffs’ cause, why did the VA reverse itself in May and select the very (less-impacted) site which one of the Plaintiffs had recommended (in a meeting w/ Crown Hill) on August 10, 2016)?

But for the intervention of Senator Donnelly and Congressman Carson, following the judge’s decision, and the fortuitous independent review of new VA Secretary Shulkin, the woods would now be mostly gone.  Why did the law not provide protection for these woods?

It’s expertise notwithstanding, the judiciary, like everyone else, is subject to potential bias. And in the VA case, the prevailing party was a government agency which might have received favored treatment.  As professor Hamburger observes:

“In court cases, there are two types of questions, those of law and those of fact.  The combination of these two types of deference – to an agency’s interpretation and to its record— is therefore especially disturbing. It means that, where the government is a party, there is systematic judicial bias in favor of the government on both the law and the facts”.   The Administrative Threat by Philip Hamburger

He further addresses the potential for systematic, institutional judicial bias.

“But this judicial deference is unconstitutional.  One problem is the judicial abandonment of independent judgement. When judges defer to agency interpretations, they depart from their judicial office or duty, under article III of the Constitution to exercise their own independent judgment  … The judges therefore cannot defer to an agency’s interpretation without abandoning their duty—indeed their very office— as judges.

But this is not all; it gets worse.  When the government is a party to a case, the doctrines that require judicial deference to agency interpretation are precommitments in favor of the government’s legal position, and the effect is systematic judicial bias.  Of course, this is an institutional rather than personal predisposition, but it is therefore all the more systematic in favoring the most powerful of parties.” (emphasis added)

Professor Hamburger’s more comprehensive 2014 book provides elaboration of judicial deference, and makes interesting reading.  In one summarizing statement (in the chapter titled Return to Deference), he writes: “Whereas once judges heard independent actions against executive officers, they now are the final participants in an appeals process that oversees administrative agencies.  The result is that administrators feel liberated from the constraints of law and judges feel bound to make the administrative system work”.

This is so right-on!   Over the years, I’ve seen many examples of either administrative law judges, state circuit and Federal courts basically, in my lay opinion,  just sign off on the arbitrary actions of the agencies, excusing their abrogation of duty by saying that the (the Courts) decline to substitute their judgement for that of the agency..  

Judge Magnus-Stinson cites much authority and case law supporting the Court’s deference in the VA case.  Her ruling gives the impression of careful conformance to the Constitution and the rule of law, and it might well be just that.  However, from my perspective, whether or not institutional bias was present, her denial of the injunction is arguably another example of the increasing and excessive power of the administrative state which seems less and less to be subject to judicial control and more and more apt to destroy our remaining natural heritage, as our culture continues its seemingly inexorable slouching towards Nineveh.

Clarke Kahlo


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