Last Thursday, property owners across America sighed in relief when a federal judge in North Dakota enjoined the Environmental Protection Agency from putting its new Waters of the U.S. rule into effect.
Federal District Judge Ralph Erickson wrote that a delay to the rule, which redefines the Clean Water Act to dramatically expand EPA jurisdiction, "is in the best interests of the public" because it gives the courts an opportunity to decide the issue on the merits.
But instead of backing down as the court ordered, Obama's EPA went full speed ahead on Friday, announcing it would apply its new rule anyway in the 37 states not specifically involved in that case. (Some states are suing in other federal courts). Although the new rule is neither urgent nor even necessary, the agency that just caused the worst case of river pollution in recent history can't wait one more minute to begin usurping more authority. Not even if the pause is "in the public interest."
It's not as if Obama's EPA officials have anything better to do with their time — like, say, clean up the river they just polluted with 3 million gallons of toxic mining waste.
This is not the first time the Obama administration has tried to erode the authority of the independent federal judiciary in this same way. In three very high-profile cases — two of them Obamacare-related and one related to immigration enforcement — Obama's attorneys have challenged the authority of federal judges to issue binding orders with respect to enforcement of federal laws with respect to anyone except the plaintiffs immediately before the court. The federal judges who have heard these cases have not taken kindly to this argument. It represents a new Obama power-grab above and beyond the water rule itself.
If accepted, the argument could create all sorts of absurd consequences. Imagine if a newspaper, enjoined in a federal district court from printing national secrets pending court review, could simply go and publish in another part of the country.
Or better, as constitutional law professor Josh Blackman noted earlier this year, the Obama legal team's argument implies that the State of Texas could have taken the Roe v. Wade decision as only legalizing abortion for Norma McCorvey (Jane Roe) herself, so that the procedure could have remained illegal for all other Texans.
Obama's record of attempting to expand executive power at the expense of the rule of law is an embarrassing stain on his presidency. It includes one illegal war, multiple unilateral changes to statutes written by Congress, and explicit (instead of implicit) selective enforcement of immigration laws. As vague as his platform of hope and change was, most of his supporters must have never expected the imperial presidency to make such great gains on his watch.