“In this war of all against all, who can withstand the might of the federal government?”

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Jul 09, 2009 “In this war of all against all, who can withstand the might of the federal government?”

Bill of Rights (From public domain.)

The Drug Enforcement Administration revoked Novelty, Inc’s, registration to distribute list I chemical products.  Novelty, Inc., v. DEA, et al., ___ F.3d ___ (D.C. Cir. June 22, 2009). Putting aside the questionable company name if it wants to be taken seriously by straight-faced government regulators, such a revocation clearly was devastating to Novelty, Inc. and its employees’ payroll.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit rejected Novelty, Inc’s petition for review from the DEA’s revocation. Judges Tatel and Henderson voted for the denial. Judge Janice Rogers Brown — who got 43 Senate no votes against her 1995 judicial nomination by Bush II — fired off a blistering dissent that perhaps underlines Clint Bolick’s pre-confirmation assertion in Reason (10/27/03) that "Brown is strikingly libertarian in her writings and decisions, which is one reason she has outraged both liberals and conservatives during her distinguished career."Novelty, Inc.  

Judge Brown’s concluding paragraph of her dissent says it all:

"No, old-fashioned law will not save Novelty and the jobs of its employees. It does not matter that no Novelty executive has ever been convicted of a crime. It does not matter that notwithstanding Novelty’s millions of sales, the best evidence the DA can point to of diversion is one–one!–instance from over six years ago. It does not matter that the DEA inspected Novelty’s records for years and never peeped about a problem before deciding to bring down the full weight of the Executive Branch on Novelty’s head. It also is irrelevant that Novelty has credibly offered to overhaul its internal processes to comply with the DA’s whims. When an agency has gone rogue, and when judicial review is gutted, the only thing left is the Law of the Jungle, the weak versus the strong. And in this war of all against all, who can withstand the might of the federal government?"

Thanks to Judge David Tatel for at least acknowledging serious DEA-based problems that led to the revocation of Novelty, Inc.’s registration:

"I agree with Judge Henderson that Novelty’s other objections to the Deputy Administrator’s decision are without merit. The Deputy Administrator correctly concluded that even if DEA agents violated the First Amendment [prohibiting Novelty, Inc., from videotaping the DEA inspection] during their inspection of Novelty’s warehouse, the exclusionary rule is inapplicable to administrative proceedings of the kind at issue here. See Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998) (“[W]e have repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials.”). Novelty complains that the Deputy Administrator failed to articulate the level of tolerable risk, but the Raber letter gave perfectly adequate guidance. Finally, neither Novelty’s complaint that the Deputy Administrator conducted a biased campaign of enforcement against independent distributors of list I chemicals nor its complaint of unconstitutional prejudgment bias finds support in the record. Especially given the Deputy Administrator’s rejection of much of the government’s evidence, my concerns with her reasoning fall short of the level at which “a disinterested observer may conclude that [the Deputy Administrator] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it,” Cinderella Career & Finishing Sch., Inc. v. FTC, 425 F.2d 583, 591 (D.C. Cir. 1970) (internal quotation marks omitted)."

Deeply disturbing, Congress over many decades — backed by the Supreme Court and the federal circuit courts — has delegated too much lawmaking and adjudicative authority to federal agencies. Were Judge Brown placed on the Supreme Court, she perhaps would require substantial effort to give full stare decisis effect to Supreme Court cases granting such sweeping legislative and judicial authority to federal agencies. So would I, but the closest I will ever get to the Supreme Court bench is sitting in the lawyers’ observation gallery. Jon Katz

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