In which I describe a scenario whereby a small change in the courts’ interpretation of existing administrative law could lead to a “no harm, no foul” approach to regulation, and argue that we have reason to think such a shift is possible.
IF THE MADISON Fund and the occupational defense funds do no more than provide assistance to people who are being harassed by the government, they will have accomplished much. If they deter the regulatory agencies from enforcing the worst regulations, they will be a full-fledged success. But those are not the limits of feasible change. It is not a pipe dream, but possible, that “no harm, no foul” can become embedded in law through a few Supreme Court decisions that five justices could realistically support.
There’s an important qualifier to that word, possible. Legal experts who have read this chapter and the next have expressed their skepticism, pointing out various technical issues of procedure and precedent. I have no doubt they are right about the barriers, and no doubt that at points in the discussion in this chapter and the next, I am blithely ignorant of still other important barriers.
Despite all this, I feel like I am in a position not unlike that of Steve Jobs when he was shown a prototype of the first iPod. He thought it was too big. His engineers told him that it was a miracle that they had been able to make it as small as it already was. There was simply no way to make it smaller. As the story is told, Jobs walked over to an aquarium and dropped the prototype into it. As it sank to the bottom, bubbles rose to the top. “That means there’s space in there,” Jobs said. “Make it smaller.”1 I am saying that the regulatory state is out of control because of some basic errors in past jurisprudence. Americans are increasingly aware that it is out of control. The federal government’s legitimacy is waning in part because of the regulatory state’s unpopularity. Hardly anyone is out there defending the excesses of the regulatory state. Put the whole thing together, and we’ve got the equivalent of air bubbles. That means there’s space in there. A fix is possible.
I have a basis for my optimism in the track record of the Supreme Court. The Court never overturns a decision like Helvering or Wickard, because such a ruling would not be obeyed and the Court’s legitimacy would be shattered. But the Supreme Court has a long history of changing course in less extreme ways when it sees that its decision will have enough support. The Court doesn’t always wait for a national consensus; sometimes, it anticipates an emerging one.2 Brown v. Board of Education, which overruled Plessy v. Ferguson, is an example. The Supreme Court was as liberal during the constitutional revolution of 1937–1942 as it was in 1954, but it is doubtful that it would have outlawed school segregation if a case such as Brown had been brought before it.[3] What made 1954 different were intervening events such as the integration of the Armed Forces. They had altered the national zeitgeist about racial segregation. In 1942, the equivalent of the Brown decision probably would have aroused widespread opposition throughout the nation. In 1954, the Court correctly anticipated that a consensus of Americans outside the South would accept it.
To create a new and better regulatory regime, we don’t need a flat-out reversal of broad and binding Supreme Court precedent. The regulatory state is vulnerable to a simple shift in its interpretation of the Administrative Procedure Act of 1946, which governs all administrative law.
The key to embedding the “no harm, no foul” approach in law is to force the regulatory agencies to be legally accountable for their actions in the same way that all other entities in the United States, from individuals to giant corporations, are legally accountable for their actions. The vulnerability lies in the wording of section 706 of the Administrative Procedure Act, which sets out the scope of judicial review of regulatory actions.
If you read section 706 without any knowledge of how the courts have interpreted it (the section’s full text is given in the note), you would think that regulatory agencies are fully accountable.[4] There’s nothing that would lead you to predict the great deference the courts have shown toward the regulatory state. And that’s the reason for the vulnerability. The actual wording of the law is unobjectionable. It is not necessary to pass a revised Administrative Procedure Act. It is merely necessary to interpret section 706 more straightforwardly.
To that end, the defense funds will be mounting a sustained assault that can potentially affect the judicial interpretation of clause 706(2)(A). This clause says, “The reviewing court shall … hold unlawful and set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The defense funds will contend that the phrase “arbitrary, capricious, [or] an abuse of discretion” applies to the enforcement of regulations as well as to their creation.
It sounds like a minor point. It could be huge. But as I describe why, I want to emphasize how much of the defense funds’ long struggle against the regulatory state will evolve in ways we cannot anticipate. I would be amazed if the scenario that follows is accurate in more than a strategic sense. But it will give you a sense of the possibilities.
Assume that the defense funds have been operating for a few years. Out of the hundreds of defenses they have mounted against regulatory overreach, dozens of them have argued a variation on the same theme: yes, their clients were technically in violation of the regulation, but the enforcement of the regulation itself was arbitrary and capricious (the shorthand I will use for “arbitrary, capricious, [or] an abuse of discretion”).
The administrative law judges hearing those dozens of cases are able to throw out all of them because the Supreme Court has set such a high bar for finding that an agency has been arbitrary and capricious. Namely, the Court said in 1971 that it would not find an agency action arbitrary and capricious if it was “based on a consideration of the relevant factors” and there had not been “a clear error of judgment.”5 Imagine you are an attorney trying to demonstrate that an action was arbitrary and capricious. How are you to prove that the agency did not consider “the relevant factors” in the face of the agency’s paper trail saying that it did? How are you to prove that the agency made a clear error in judgment—in effect, a judgment that has no rational basis whatsoever? Answer: It’s next to impossible. Lest he leave defendants any chance at all, Justice Thurgood Marshall, writing for the 6–2 majority in Citizens to Preserve Overton Park v. Volpe, continued: “Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.”[6]
The sentence I italicized gets to the heart of a problem that explains a great deal of what has gone wrong with the regulatory state: the deference that the courts have wrongly accorded to the regulators. I discussed the origins of the deference in chapter 3. To recapitulate: The progressive advocates of the regulatory state saw regulators as special people—disinterested experts on arcane topics about which elected legislators were ignorant, and able to make technically correct decisions to advance the public interest without fear or favor. None of those advocates seemed to consider the possibility that regulators were as likely to make mistakes as anybody else, as likely to have political biases as anybody else, and as likely to abuse power as anybody else. This idealistic view of regulators persisted, and is reflected in the deference that has been given to regulators by Supreme Court jurisprudence. To this day, the opinions of the bureaucrats in the regulatory agencies count for more in the eyes of federal courts than the opinions of experts in the private sector.
But a few years into the operation of the defense funds, all of those failed defenses they’ve mounted have not gone unnoticed. The defense funds have learned how to publicize the most egregious cases of arbitrary and capricious behavior by regulatory agencies—a reality TV show showing ordinary Americans being victimized by regulators, American or UnAmerican: You Decide, has become a big hit—and over time these cases have affected the nation’s consciousness.7 Just because the administrative judges always say that the regulatory agencies did not act arbitrarily and capriciously, it doesn’t mean that the public agrees. Nor are the judges who sit on Article III courts unaware of what’s been going on.
In this context, the case of Lancaster Brick Company v. OSHA comes before an Article III court on appeal. As the judges study the transcripts of the hearings before the administrative judge and the subsequent rejected appeal within the Department of Labor, they read the following story.
The Source of the Story
The facts about the brick factory and violations of OSHA regulations are all true, drawn from an account of actual violations of OSHA regulations brought against a brick factory as described by Philip K. Howard in The Death of Common Sense.8 Because I have inserted these facts into a fictional legal battle, I have also adopted a fictitious name for the company, and do not identify by name the sources of the quotes. But the quotes are indeed the words of personnel in the real brick company. I have not tried to make my account conform to the technical details of how hearings before administrative law judges and judges in Article III courts are conducted. I’m using a narrative device.
An OSHA inspection of the Lancaster Brick Company’s brick-making facility found the following violations of OSHA regulations, for which it assessed fines that Lancaster is appealing:
1. Some railings in the factory were 39 and 40 inches high instead of the required 42 inches.
2. Lancaster failed to install the required automatic shut-off for a conveyer belt.
3. Lancaster failed to post a POISON sign on a storage shed containing poison.
4. Lancaster permitted a worker with a beard to use a dust mask, violating a rule that requires a close fit between face and mask.
5. Lancaster permitted a fire hazard in a work area.
Lancaster was technically in violation of all five. Its defense is that OSHA’s actions against Lancaster should be voided because they are arbitrary and capricious.9 To make its case before the administrative law judge, the defense fund attorney had taken on the allegations one by one:
1. The lower railings have been in place for decades, and Lancaster has never had an accident involving railings. Why, the defense fund attorney asks, is 42 inches safe and 39 or 40 inches unsafe?
2. The conveyer belt runs through an area that is already partitioned off from workers. There’s no safety reason to spend the several thousand dollars the automatic shut-off would cost.
3. The “poison” in the bags in the storage shed is sand. Ordinary beach sand. OSHA wants a POISON sign posted because it classified sand as a poison. How can sand be poisonous? Because it contains silica, which might (just might) cause cancer in certain grinding and mining operations—which, even if correct, has nothing to do with anything that goes on at the Lancaster Brick Company.
4. The dust in the work area is neither heavy nor hazardous, and the dust mask works even when worn over the beard. Furthermore, the man in question is Amish, and if the rule is enforced, he will quit rather than violate his religious convictions. It is cruel as well as senseless to make a man lose his job over principle when there’s no safety hazard created by his beard.
5. The work area with the fire hazard is the machinery repair shop. The hazard consists of a few rags (not piles of them) found beside the machines under repair. Rags are needed to wipe down surfaces and clean bearings. You can’t run a machinery repair shop without them.
Then the defense had called Lancaster’s manager of regulatory compliance to the stand (it’s a full-time position at Lancaster, as at most factories). He had testified that each inspection is a kind of “a negative lottery.” “Every inspector knows different rules,” he said, so the ones that the inspectors cite are their own go- to specialties, unrelated to the actual safety importance of the rule. But with so many regulations on the books (so many that none of the inspectors can remember all of them), they can always find something wrong, even though “we have done basically everything they asked for the last twenty years.”[10] Even the choice of which regulations to enforce is arbitrary and capricious.
It’s even tougher on the factory because OSHA had issued complicated and ambiguous new regulations without explaining how to comply with them. The administrative law judge heard testimony that when a new regulation required Lancaster to make substantial changes to part of the plant, Lancaster’s management tried to find out exactly what they needed to do. After a few weeks of working their way through the layers of OSHA’s bureaucracy, they gave up. No one would tell them what compliance required.
Lancaster’s manager of regulatory compliance then told the administrative judge about another problem: OSHA creates safety problems through its fixation on paperwork and the physical layout of the plant. That’s not what causes accidents, he says, invoking statistics showing that five out of six accidents are caused by human error. Trying to make everything “idiot-proof,” in his words, distracts from real safety considerations. “Workers don’t have to think, and bosses get tied down with nitpicking regulations.” The plant manager was called to testify. He emphatically argued that OSHA had created safety problems with its demands that workers change long-standing safe and effective habits. “Doing it a new way after years of doing it the old way is just an invitation for an accident,” the manager said.[11]
In rendering his decision, the administrative judge had found that the defense had not met its burden of proof. According to the Supreme Court’s guidance in Overton, the case for “arbitrary and capricious” failed. For each of the five violations, OSHA had offered a paper trail documenting that it had considered the relevant factors in creating the regulations and there was a rationale for each of them. The inspectors were merely applying the regulations to observed conditions at the Lancaster plant.
At the appeal hearing before the Article III court, one of the judges asks the defense fund attorney to respond: Why was the administrative judge wrong? Yes, the appeals court judge agrees, all of the five findings of violations looked pretty silly on their face, but did they meet the Overton requirement that OSHA made clear errors in judgment? And OSHA could indeed come up with a rationale for each of the five, however farfetched those rationales may seem to observers who aren’t lawyers.
Lancaster’s lawyer from the defense fund responds as follows:
One of the most common criticisms of bureaucrats, so common that it has been a cliché around the world for centuries, is that they interpret the rules according to the absolute letter of the rule without regard to circumstances. Why has this been such a universal characteristic of bureaucrats? For two reasons. One is that they cannot be criticized by their superiors if they have followed the letter of the rule. The other is a sad commentary on human nature, but it has been confirmed by experience over millennia: people who are given the right to order other people to do things tend to exercise that power mindlessly.
Courts such as this one, following the Supreme Court’s guidance in Overton v. Volpe, have refrained from substituting their judgment for that of the regulatory agencies when applied to complex regulations based on technical analyses of abstruse scientific issues. Our case does not dispute that position. But none of the regulations putatively violated by Lancaster Brick Company are either complex or abstruse. OSHA has given its scientific rationale for requiring that beach sand be labeled POISON—that under some circumstances beach sand may cause cancer. We argue that you as judges are free to decide that such a rationale as applied to the environment of the Lancaster Brick Factory is so devoid of common sense that it is arbitrary and capricious. OSHA has given its scientific rationale for prohibiting dust masks being used by people with beards—that under some circumstances, the worker will be exposed to a health hazard. But you as judges are free to decide that the OSHA inspector who cited it as a violation was so oblivious of the facts of this particular case that the inspector’s decision to cite it as a violation was arbitrary and capricious.
We understand that interpreting “arbitrary and capricious” for any specific case is a judgment call. So is the interpretation of “guilty beyond a reasonable doubt” in criminal cases, or the interpretation of “duty of care” in civil cases. “Arbitrary and capricious” can be explicated as other legal terms of art have been explicated, but in a way that captures this elemental truth: a regulatory agency’s actions, findings, and conclusions can have gone through the motions of taking relevant considerations into account, and can appeal to some rationale, and still be obviously arbitrary and capricious when viewed in the context of the specific real-life situation in which they are applied.
To evaluate “arbitrary and capricious” in the context of specific real-life situations would bring regulatory law into the realm in which ordinary civil law and criminal law have abided for centuries. In common law, circumstances surrounding the actual event in litigation have always been at the center of attention. In criminal law, mitigating circumstances have always been taken into account. Only regulatory law has been sheltered from the requirement that it be enforced in the context of circumstances.
The deference of administrative judges and the Article III courts to the regulators has gone too far. Even assuming that it is appropriate for highly complex regulations—a point we do not reach in this case—it is inappropriate for simple regulations. In those instances, as in any other kind of law, the citizen must have the ability to appeal to a jury’s or a judge’s common sense. Since administrative courts shelter the regulatory agencies from juries of ordinary citizens, you are the only repository of common sense left.
In this scenario—which leaves open the probability that exactly the same argument will have failed many times previously—the Article III court does not rule on the content of the regulations, but holds that the enforcement of those rules in the Lancaster case was arbitrary and capricious, and on that basis it finds for Lancaster Brick Company.
The adverse decision leaves OSHA with a painful choice. Should the agency accept the court’s finding and hope that it will be a one-off result? Or does the agency appeal the decision to a higher court, all the way to the Supreme Court if necessary, to overturn the decision and preserve the more restrictive interpretation of “arbitrary and capricious”?
If the defense funds did not exist, the first option would be attractive. The case might get a news story in the local paper, and maybe a few defense attorneys elsewhere in subsequent cases would pick up on it, but not much else would happen. But the defense funds will not allow the ruling to go unnoticed. It will be widely publicized in the news media and then cited as precedent in subsequent cases that the defense funds bring. If the regulatory state does not get a higher court to overturn the ruling, its way of doing business will be forever altered.
So Lancaster Brick Company v. OSHA is appealed up the ladder and reaches the Supreme Court. What then? I think we are at a point in the history of the regulatory state analogous to the state of legal segregation in 1954. The Supreme Court will discern an emerging social consensus: Americans across most of the political spectrum are fed up with the excesses of the regulatory state. They don’t want to get rid of it, but they want it to be reasonable. They want it to stop being arbitrary and capricious. The Supreme Court upholds the ruling that enforcement of a regulation can be arbitrary and capricious regardless of whether the content of the rule rises to that level.
What difference does a single court victory make? Until the Lancaster decision, the defense funds will have been fighting a war of attrition based on overwhelming the limited enforcement resources of the regulatory agencies. Once that Supreme Court decision is available as a precedent, and the regulatory agencies know that the defense funds will be using it constantly, a large part of the battle will have been permanently won.
Once again, put yourself in the position of an administrator at OSHA. For the enforcement of big, complicated regulations, little has changed. The courts will still accord deference if the rules in formulating the regulations have been followed and the issues are sufficiently abstruse. Regulatory bureaucrats may feel a frisson of apprehension that didn’t exist before (What if some deep-pocketed corporation goes all out to demonstrate that even a complicated regulation is prima facie idiotic in its content?), but no more than that.
But when it comes to routine inspections and the small stuff, the shift in the interpretation of “arbitrary and capricious” will have created a new dynamic. Consider the sequence of events at that point.
Before legally supported systematic civil disobedience began: The ordinary citizen or small business was completely vulnerable. The regulatory agency could issue compliance orders with no downside risk whatsoever.
After the formation of the defense funds: The agency then faced a downside risk. It could still ultimately get its way, but when a defense fund took a case, the regulatory agency was forced to expend resources, knowing as it did so that even when it finally prevailed, the defendant’s fine was going to be reimbursed. Before the advent of the defense funds, only the defendant had to ask, “Is it worth it?” when the regulatory agency came after him. After the defense funds, regulatory bureaucrats also had to ask themselves, “Is it worth it?”
The day after the Supreme Court has issued the reinterpretation of “arbitrary and capricious”: Now the downside risks of a confrontation in an Article III court have qualitatively increased. Every time the defense fund wins a case, the regulation in dispute is at risk of being undermined. Go back to the Lancaster example of the requirement for a POISON sign where bags of sand were stored. After an Article III court has ruled that the requirement for labeling sand was arbitrary and capricious when it was enforced against a brick factory, a precedent has been set that means any other similar violation of that particular definition of poison can be contested successfully—and so can comparable cases involving other substances that don’t require a warning in many work settings. Multiply that by hundreds and eventually thousands of regulations. Prior to the reinterpretation of “arbitrary and capricious,” the defense funds could succeed in making regulations unenforceable de facto; afterward, they can make those regulations unenforceable through the power of judicial precedent.
And now we come to the point at which systemic change in the regulatory regime begins to unfold. Let’s continue with the POISON example. In principle, the regulation has merit. If I’m in an area where I could accidentally knock over a jar, break it, and release poison gas into the air, I’d like to be informed of that fact by a sign that says POISON. So if OSHA wants to keep a regulation requiring workplaces to let people know that dangerous stuff is being stored, fine. What the reinterpretation of “arbitrary and capricious” does is force OSHA into an internal review process of substances that fit a commonsense definition of “dangerous stuff.” Sand comes off the list right away. Cyanide stays on the list no matter what. But in between those two extremes, as OSHA makes choices about what substances are dangerous in what contexts, this consideration has to come into their mind: “Could we defend this decision in front of a judge?”[12]
The final list of things and places that require a POISON sign will still probably be too inclusive, but it will be much shorter than the current list. The storage conditions that are deemed dangerous will be more realistically defined than they currently are. That’s a major improvement in itself. The formation of regulations will be constrained by the prospect of having the regulation undermined in court—something that the regulatory state has not, for practical purposes, had to worry about.
The reinterpretation of “arbitrary and capricious” will also force a degree of common sense onto the assessment of local conditions. Here, the example of the conveyer belt at Lancaster is applicable. Having an automatic shut-off on conveyer belts is a good idea in workplaces where workers behaving with normal caution are at risk of being accidentally pushed into the conveyor belt. But the need for an automatic shut-off varies according to the size of the conveyor belt, its speed, the things that the conveyor belt is carrying, and how exposed workers are to the conveyor belt in the course of their movements around the workplace.
OSHA’s real goal is to see that conveyor belts are not a safety hazard in the workplace. After the reinterpretation of “arbitrary and capricious,” it knows that it can’t just have a broad requirement for automatic shut-off devices, because it will be vulnerable to a defense like Lancaster. One would hope that this would push OSHA to rewrite the regulation so that it allowed for alternative ways of making conveyor belts safe, and limited the conditions under which conveyor belts pose a significant safety hazard at all. But even if OSHA doesn’t formally rewrite the regulation, it will have incentives to pursue a violation only in those circumstances when it is not vulnerable to a Lancaster-like defense.
The same will be true throughout the regulatory system. Sometimes the wording of regulations will change; more often, the change will consist of the enforcement of the wording. Enforcement will more often be framed in terms of principles rather than blind enforcement of the letter of the law—just as (most of the time) speed limits on interstate highways are enforced according to principles of safety, not the precise miles per hour posted on traffic signs. In short, regulatory bureaucrats will be pushed toward a “no harm, no foul” approach to regulations. It won’t be perfect. It will be a huge improvement.
Thus my reasons for thinking that it is realistic to hope that systematic civil disobedience, backstopped by legal support, can result in a major change in the jurisprudence of “arbitrary and capricious.” We have a recent and directly applicable case in point that says it’s realistic: Sackett v. Environmental Protection Agency (2012).
In 2005, Mike and Chantell Sackett purchased two-thirds of an acre of land on which to build their new home. As the owners of a small construction company, they were familiar with all the rules that surround house construction, and followed all of them. They began excavation for the foundation. Then they received a compliance order from the EPA saying that their two-thirds of an acre was wetland subject to the Clean Water Act. If they failed to restore the land to its original condition within five months, they would begin incurring fines of more than $37,000 a day. If the EPA then initiated an enforcement action, all of those days would count in the Sacketts’ liability if the administrative court ruled against them.
The Sacketts knew that the allegation was absurd by any meaningful definition of wetland. But the EPA refused to give the Sacketts a hearing where they could make that case because a compliance order is, technically speaking, only a warning.
The EPA gave the Sacketts a choice: They could refuse to comply and wait until the EPA issued an “enforcement action.” Then they could argue their case in an administrative law court. But while they waited for the EPA to issue an enforcement action—which could take whatever amount of time the EPA chose—their $37,000-per-day meter would start running five months after the compliance order was issued. So at the moment they stepped into the hearing room to make their case, they could already be facing hundreds of thousands or millions of dollars of accumulated fines if their appeal failed. It was a classic example of regulatory strong-arming: give the citizen a choice of knuckling under right away, with all the costs of restoring the land to its original condition plus losing the value of their land (because no one could build on it), or risk being financially ruined if the same administrative system that called their plot “wetland” persisted in that judgment.
Let’s pause for a moment before I tell you the ending, and consider the enormity of what was being done to ordinary American citizens even if the land genuinely qualified as wetland. A family wants to build a home on two-thirds of an acre of land they have legally purchased. Would the public good associated with preserving wetlands have been compromised if Congress had provided for individual families to build homes on small plots of land that are not part of a larger wetland tract? And even given the ham-handed way that Congress actually wrote the legislation, would the public good associated with preserving wetlands have been compromised even the tiniest bit if the EPA had turned a blind eye to the Sacketts’ plot?
But we don’t need to fret about that point. As you may go to the Internet and see for yourself, no reasonable person would have said that the Sacketts’ lot, sandwiched between a paved road on one side and a row of tightly spaced lakefront houses on the other, was even wetland in any meaningful sense of the word, let alone part of any kind of wetland tract that could be preserved even if it should be.13 With the help of pro bono lawyers from the Pacific Legal Foundation, the Sacketts fought their case all the way to the Supreme Court. They showed great courage in doing so—even though they were getting free legal help, they were vulnerable to millions of dollars in fines if they lost.
But the Sacketts won, at least on this issue (they were just given the right to be heard in court; the actual compliance order was not voided).[14] On March 21, 2012, the Supreme Court unanimously overruled the lower Article III court that had heard the case, holding that the Sacketts could bring a civil action under the Administrative Procedure Act to challenge the EPA’s compliance order.
The Sackett case is applicable to our goals in two ways. First, it is exactly the kind of situation that the defense funds will seek to litigate: one in which reasonable people, looking at what the regulatory state has done, will conclude that the federal government is behaving outrageously and even tyrannically. Everyone was on the Sacketts’ side except the EPA and the looniest environmentalists. If the Supreme Court had ruled against the Sacketts—in effect saying that if the EPA comes after you, you don’t even have the right to fight—it could have created a public backlash similar to the backlash against Kelo. So point number one is that if the cause is not only righteous but obviously seen as righteous by the public at large, and if the regulatory agency is behaving with sufficient arrogance and stupidity, the Supreme Court will sometimes find a constitutional justification for doing the right thing.
My second point is that the EPA fought this case all the way to the Supreme Court. One’s first reaction is to ask why. True, the same issue had been litigated several times before and the EPA had always won. But the facts in this case were so ludicrous that senior officials at the EPA surely understood they would take a major public-relations hit. Perhaps they wished they could have rewound history and left the Sacketts alone. But they nonetheless persevered all the way to the Supreme Court.
We have reason to hope that the effort to change the application of “arbitrary and capricious” will follow the same pattern. The defense funds will lose many cases, but sooner or later some spectacularly indefensible enforcement action will get in the pipeline to the Supreme Court and the regulatory agency at fault will not have the good sense to back off. And the Supreme Court itself will be faced with the question: Do we want another Sackett, at a time when the public’s disgust with an overweening government is even greater than it was when Sackett was decided?
It is not just a possibility that the worst aspects of the regulatory state can be rolled back. Given a sufficiently relentless focus on the proposition—the manifestly true proposition—that the regulatory state is routinely “arbitrary or capricious,” that rollback can happen.