Submitted by David Anderson.
Because if an incumbent or challenger does not speak – and act – unequivocally and emphatically on behalf of clear constitutional mandates, then he or she has knowingly, or otherwise, relinquished his or her primary “responsibilities to the encroaching administrative state.”
And then, what other constitutional freedoms – a nonpartisan issue – will we see slip away?
It’s why the RIP (Rental Inspection Program) is wrong.
In an article for “National Review”, August 24, 2018, Orrin Hatch writes in support of Supreme Court nominee Judge Brett Kavanaugh based upon Kavanaugh’s firmly held – and acted upon – belief that “convenience and efficiency are not the primary objectives — or the hallmarks — of democratic government.”
When the Lakewood City Council considered their options prior to installing the Rental Inspection Program – or Rental Housing Safety Program as it eventually became known – one of those options, briefly considered, was to embark upon what RIP architects called “a robust tenant/landlord outreach educational program.”
The reasonable, and representative, certainly far less intrusive and costly, option – discarded by the Lakewood City Council – was education.
However, to “educate tenants to report substandard living conditions” (p.5 of a February 8, 2016 memo from Lakewood City Attorney Heidi Wachter to the Mayor and City Councilmembers), was judged neither convenient nor efficient by the council which, according to Kavanaugh, is neither here nor there, those “not the primary objectives – or the hallmarks – of democratic government.”
“As Judge Kavanaugh understands,” writes Hatch, “a judge” (and, one would think, by extension, a legislator) “and an agency have different objectives: A judge (legislator) seeks the best reading of the statute; an agency seeks the reading of the statute that best comports with its policy goals.”
Lakewood’s (the agency) – expressed purpose (policy goal) – in the RIP is for “ensuring a standard of safe and decent living conditions for everyone who lives in rental housing in the City.”
Does inserting government- or government-approved inspectors into every rental, with few exceptions, in the city “best comport with its policy goals”?
Is mandating – or else – compliance “the best reading of the statute”?
The following excerpt is from City Attorney Heidi Wachter’s briefing to the City Council at its Study Session of February 21, 2015.
“The City Code includes language that is intended to facilitate enforcement efforts in substandard residential rental property. Many cities have programs of similar nature and some of these efforts have resulted in litigation by landlords and property owners against cities, most notably two lawsuits, one involving the City of Seattle in 1994 and the other the City of Pasco in 2007.
“Each of these cities was separately sued for attempting to implement similar provisions around inspection of rental properties. Seattle’s program failed constitutional scrutiny, but Pasco’s Code succeeded. The critical distinction between the two programs is that Seattle mandated that landlords use municipal employees to perform the required inspection while Pasco allowed the landlord to independently certify compliance by having an approved class of inspectors conduct the required inspection. This difference, requiring municipal access to private property versus accepting independent certification, is the difference between an unconstitutional intrusion and a defensible program.”
Sure, Lakewood’s program is defensible. Possibly reasonable per policy goals. Well-meaning even.
However, as the court cautioned in the Pasco case, “we should always be skeptical when any government seeks to invade any person’s home, no matter how well meaning the exercise of police power may be.”
Enter Judge Kavanaugh.
Simply because an interpretation is reasonable doesn’t mean it should be allowable.
“Under Chevron, the Supreme Court’s invented deference doctrine, courts defer to whatever interpretation an agency comes up with so long as that interpretation is reasonable. Judge Kavanaugh has rightly criticized this doctrine as giving agencies too much power to ‘stretch the meaning of statutes enacted by Congress to accommodate their preferred policy outcomes.’ Under Chevron, Judge Kavanaugh has observed, ‘executive branch agencies often think they can take a particular action unless it is clearly forbidden’ — rather than seeking to conform the action to the law.’”
Writes Hatch of Kavanaugh, “he refuses to cede his judicial responsibilities to the encroaching administrative state.”
Administrative searches, which constitutes Lakewood’s end-run around the constitution, should concern the current and future members of the Washington State Legislature – determined by a vote this November – who should likewise refuse to cede their legislative responsibilities to the encroaching administrative likes of local government.
“Deciding the rights of individuals without a fair hearing and on ‘bureaucracy standard time’ does not sit well with the judge.”
It should not sit well either with Lakewood’s would-be legislative representatives.
“The constitutional requirements of bicameralism and presentment, which requires a bill to pass through both houses of Congress and cross the president’s desk before it can be a law, are pointless if a bureaucrat can stretch Congress’s law into loopholes large enough to sneak through policies untouched by the political process.”
Hence our appeal to the State Legislature, all candidates to represent the 28th having been contacted as well as all Lakewood City Councilmembers, all of whom are in possession of a Washington State official’s opinion that “a tenant can” in fact “withhold permission for the government to enter without a warrant,” and that “under the law the tenant has the ability to refuse entry for administrative searches conducted without a warrant” and thus all of what Lakewood has done with regards its Rental Inspection Program, “needs clarification” by the State Legislature.
There is no one, at least no one worth the title of representative, that should balk at the opportunity to go under the hood – allowing the public to see what they see on the big screen – and upon further review address the RIP legislatively.
We shall see.