Usually when I write about West Virginia I write about the Cardinal Institute for West Virginia Policy and the great things being done by them.   

Usually when I write about West Virginia I write about the Cardinal Institute for West Virginia Policy and the great things being done by them. This time it’s the Supreme Court case West Virginia v. Environmental Protection Agency and the decision that will help roll back the administrative state. For years, Congress has failed to do its job, passing laws filled with lofty goals, but starved of specifics. Regulatory agencies slowly expanded their powers—reaching further than their intended purpose of law enforcement and execution—to fill the gaps left by legislators. The administrative state has thus grown into an unwieldy behemoth, unilaterally legislating, executing, and adjudicating laws, all within individual agencies. In West Virginia v. EPA, the Court ruled in a 6-3 opinion that the Clean Power Plan issued by the Obama administration’s Environmental Protection Agency (EPA) was unconstitutional. The ruling relied heavily on the “major questions doctrine,” which dictates that major
policy decisions should be debated and decided by Congress, not a bureaucracy. Because of the wording of Chief Justice John Roberts’ opinion, it is likely that this decision will extend far beyond the EPA in its impact on public policy.

This Supreme Court decision could have positive ripple effects throughout the bureaucracy. Another area to keep a close eye on is internet classification. In 2015, the Obama administration enacted the Open Internet Order – more commonly known as the “net neutrality” rule – classifying the web as a Title II public utility. Opponents strongly argued that Congress had not granted the Federal Communications Commission (FCC) to make such a sweeping change. Many of those principles were echoed by proponents of West Virginia’s case regarding the Clean Air Act. In fact, back when the Open Internet Order was going through the court system, then-DC Appeals Court Judge Brett Kavanaugh made that exact same point in his dissent, arguing the order was unconstitutional. The language Kavanaugh used in that 2015 case was cited by Chief Justice Roberts in his opinion for the Court in West Virginia, “We presume that Congress intends to make major policy decisions itself, not leave those decisions to
agencies.” As a result, crushing regulations have mounted, with the Code of Federal Regulations approaching 200,000 pages, and annual regulatory compliance costs, effectively taxes, reaching well into the trillions of dollars. All of this without much, if any, democratic accountability. The administrative state has long been an extra-constitutional abomination. The Supreme Court is right to finally check the extremes of executive overreach and legislative neglect by successive administrations and Congresses controlled by both parties. There has been a lot of hand wringing by Democrats over this decision.

The internet had existed as a Title I information service for years. Many courts had struck down attempts to implement the types of regulations present in the Open Internet Order onto Title I services. In order to get the regulatory outcome the FCC wanted, they would have to upset years of precedent by changing the classification to Title II. They were successful in 2015, but the re-classification was rolled back two years later with the Restoring Internet Freedom Order under then-FCC Chairman Ajit Pai, restoring the pre-2015 classification. Now that the legal principles opposing the Open Internet Order have been affirmed by the highest court in the land, another internet re-classification to Title II will be legally dubious at best and blatantly unconstitutional at worst. A major re-classification of the internet that opens it up to a number of regulations is clearly a “major question” of public policy that ought to be decided by elected representatives of the people of the United States
before any unelected bureaucrat sinks their hooks into one of the most important parts of our nation’s economy.

The Court’s ruling in West Virginia is by no means a death knell for the Clean Air Act or for Title II regulations. There is little doubt that those questions will still be meaningfully and fiercely debated by both sides in the years to come. However, the Court has thankfully added clarity that the answers to these major questions must come from the halls of Congress as opposed to coming from a unilateral bureaucratic mandate made by a political appointee.


Postal Seizures

TPA has written extensively about the United States Postal Service (USPS) and its financial problems. TPA is now concerned with mail seizures being conducted by the USPS. TPA wrote to Postmaster General Louis DeJoy expressing our concerns about search and seizure policies at the USPS. As America’s mail carrier, the USPS has a responsibility to ensure that all households and businesses can send and receive mail without the agency singling them out for harassment. The reported search and seizure of four ordinary-looking boxes containing thousands of COVID-19 face masks adorned with political messages raises fundamental questions about the USPS’ fairness and neutrality. As taxpayers must foot the USPS’ legal bills in what may be years-long litigation, it is imperative that the agency clear its name and put forward comprehensive guidance as to its search and seizure policies.

The letter (in part) read:

“According to the Institute for Justice (IJ), the seized boxes belonged to ‘René Quiñonez, who operates Oakland based Movement Ink LLC, a small, family-run, social justice-focused screen-printing company.’ After the tragic murders of George Floyd and Breonna Taylor, Quiñonez and his team moved quickly to print ‘Black Lives Matter’- themed face masks and send them overnight to organizers across the country. But as IJ notes, these packages never reached their destination. Instead, ‘he and his clients were greeted by a disturbing ‘Alert’ on the Postal Service website: ‘Seized by Law Enforcement.’ René panicked. After all, he hadn’t done anything wrong. He knew face masks were not illegal; in fact, at the time, they were required by law.

After Quiñonez reached out to his member of Congress and contacted the press, the USPS responded by issuing a refund but insisted that the packages looked suspiciously similar to boxes previously shipped by drug distributors. It is unclear, though, how the agency could have concluded that four neatly taped brown boxes were sufficiently suspicious to spur a search and seizure. What is clear is that the agency’s hunch cost Movement Ink time, clients, and money. As IJ notes, ‘[s]ome of René’s longstanding clients dropped him, and the organizers backed out of plans for future recurring apparel orders. To this day, Movement Ink is struggling to recover from these blows to its reputation and business.’ Search and seizure by the USPS can be a useful tool to stop illegal drugs and contraband from entering the country or being sent within the U.S. Fentanyl and other illicit substances regularly flow into the U.S. via the USPS, and if anything, the agency should be making greater efforts to inspect
its packages. America’s mail carrier lags far behind its private competitors in setting up a comprehensive package screening program. The USPS must walk a fine line and ensure that this inspection process doesn’t turn into a vehicle for First Amendment violations. There is an ugly history of politicians using the post office to punish “sedition” and unpopular religious materials, and we cannot return to those terrible practices. Rather, the USPS should forthrightly describe its inspection processes and honestly account for its seizures of Movement Ink’s boxes. We appreciate your attention to this matter and look forward to a response from your office.”

This search and seizure is a chilling reminder of what happens when the government has too much power. Government abuse is way too common and must be stopped.

BLOGS:

Wednesday: TPA Sends Letter Expressing Concerns About Search and Seizure Policies at the U.S. Postal Service ([link removed])

Thursday: Throwback Thursday – Profile in Courage: Baltimore Inspector General Isabel Mercedes Cumming ([link removed])

Friday: Op-Ed: Officials in Colorado Town Funnel $15 Million More to Government Broadband Project ([link removed])


MEDIA:

July 1, 2022: The Washington Times mentioned TPA in their story, “Laffer gets off sidelines to fight antitrust bill aimed at reining in Big Tech ([link removed]) .”

July 1, 2022: The Courier Express (Du Bois, PA) ran TPA’s op-ed titled, “FDA’s demonization of nicotine harms consumers ([link removed]) .”

July 1, 2022: The White Mountain Independent (Show Low, AZ) ran TPA’s op-ed, “Opinion: The Road to Quitting Smoking Is Paved With Candy ([link removed]) .”

July 4, 2022: WBFF Fox45 ([link removed]) (Baltimore, Md.) interviewed me about protecting whistleblowers.

July 5, 2022: WBFF Fox45 (Baltimore, Md.) quoted TPA in their story, “Marilyn Mosby asks court for help paying for defense ([link removed]) .”

July 6, 2022: Dan Savickas joined The Barrett Brief (New Orleans, La.) to discuss West Virginia v. EPA and TPA’s latest letter to the USPS.

July 7, 2022: I appeared on WBOB 600 AM (Jacksonville, Fla.) to talk about the economy and gas prices.

July 7, 2022: WBFF Fox45 (Baltimore, Md.) interviewed me about the Board of Estimates ([link removed]) .

July 7, 2022: The Livingston Parish News (Denham Springs, La) ran TPA’s op-ed, “OPINION | The WHO is using Big Tobacco’s playbook to mislead smokers worldwide ([link removed]) .”

July 7, 2022: Patrick Hedger joined ‘New Hampshire Today’ on WGIR AM 610 (Manchester, NH) to discuss West Virginia v. EPA, student loan forgiveness, and TPA’s latest letter to the USPS.

July 7, 2022: Townhall.com ran TPA’s op-ed, “If the Federal Trade Commission Doesn’t Change Course, the Supreme Court Will Make It.” ([link removed])

July 7, 2022: The Los Angeles Daily News (Los Angeles, Calif.) ran TPA’s op-ed, “L.A. Angeles County ponders pumping billions into municipal broadband. ([link removed]) ”

July 7, 2022: The San Gabriel Valley Tribune ([link removed]) (San Gabriel Valley, Calif.) ran TPA’s op-ed, “L.A. Angeles County ponders pumping billions into municipal broadband.”

July 7, 2022: The Pasadena Star News (Pasadena, Calif.) ran TPA’s op-ed, “L.A. Angeles County ponders pumping billions into municipal broadband ([link removed]) .”

July 7, 2022: The Whittier Daily News ([link removed]) (Los Angeles, Calif.) ran TPA’s op-ed, “L.A. Angeles County ponders pumping billions into municipal broadband.”

July 7, 2022: The Press Telegram ([link removed]) (Long Beach, Calif.) ran TPA’s op-ed, “L.A. Angeles County ponders pumping billions into municipal broadband.”

July 7, 2022: The Daily Breeze (Los Angeles, Calif.) ran TPA’s op-ed, “L.A. Angeles County ponders pumping billions into municipal broadband.” ([link removed])

July 7, 2022: Townhall.com ([link removed]) ran TPA’s op-ed, “Officials in Colorado Town Funnel $15 Million More to Government Broadband Project.”

July 7, 2022: Politics406.com ([link removed]) (MT statewide) ran TPA’s op-ed, “Officials in Colorado Town Funnel $15 Million More to Government Broadband Project.”

July 8, 2022: Real Clear Markets ran TPA’s op-ed, “Amid Rising Prices, Broadband Prices Continue to Fall.” ([link removed])

July 8, 2022: Patrick Hedger joined Real America’s Voice with John Solomon (National) to discuss West Virginia v. EPA, student loan forgiveness, and TPA’s latest letter to the USPS.

Have a great weekend!

Best,
David Williams
President
Taxpayers Protection Alliance
1101 14th Street, NW
Suite 1120
Washington, D.C. xxxxxx
www.protectingtaxpayers.org ([link removed])

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