What Actual Judicial Activism Looks Like

Republicans have no problem with "judicial activism" when they go to federal court to try to block every Obama-era federal regulation that they don't like (which is all of them).  This week's injunction comes on the Clean Water Act.

A federal judge in North Dakota acted late Thursday to block the Obama administration’s controversial water pollution rule, hours before it was due to take effect. 

Judge Ralph Erickson of the District Court for the District of North Dakota found that the 13 states suing to block the rule met the conditions necessary for a preliminary injunction, including that they would likely be harmed if courts didn't act and that they are likely to succeed when their underlying lawsuit against the rule is decided.

The decision is a major roadblock for the Environmental Protection Agency (EPA) and the Army Corps of Engineers, who were planning Friday to begin enforcing the Waters of the United States rule, expanding federal jurisdiction over small waterways like streams and wetlands. 

But the Obama administration says it will largely enforce the regulation as planned, arguing that the Thursday decision only applies to the 13 states that requested the injunction. 

“Once the rule takes effect, the states will lose their sovereignty over intrastate waters that will then be subject to the scope of the Clean Water Act,” Erickson wrote in his order. 

“While the exact amount of land that would be subject to the increase is hotly disputed, the agencies admit to an increase in control over those traditional state-regulated waters of between 2.84 to 4.65 percent. Immediately upon the rule taking effect, the rule will irreparably diminish the states’ power over their waters,” he continued, calling the Obama administration's interpretation of its jurisdiction "exceptionally expansive." 

The states and the federal government argued over how to judge the likelihood opponents of the rule would win their case. But Erickson decided that the regulation is not “likely” to stand up to full court consideration. 

In a statement shortly after the ruling, the EPA was defiant and said that the injunction only applies in the thirteen states that filed for it: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

Pretty easy to find at least one federal judge that hates Obama to block the rule from ever taking effect and run out the clock until the next administration.  They've done it before on ozone and power plant emissions and mercury emission regulations got all the way to the Supreme Court earlier this summer before those were struck down over cost benefit analysis, so yeah, it's no surprise that enforcing Clean Water Act rules are being blocked too.

This is what real "judicial activism" and "legislation from the bench" looks like:  Corporate controlled Republicans constantly using the courts to block executive branch enforcement of laws that Congress passed to give the executive branch the power to enforce.

But only against Obama.