Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 21 (1994)

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220

THUNDER BASIN COAL CO. v. REICH

Opinion of Scalia, J.

And finally, as to Part IV: The Court holds that the preclusion of review is constitutional "because neither compliance with, nor continued violation of, the statute will subject petitioner to a serious prehearing deprivation." Ante, at 216. I presume this means that any such deprivation will be de minimis (since I know of no doctrine which lets stand unconstitutional injury that is more than de minimis but short of some other criterion of gravity). It seems to me, however, that compliance with the inspection regulations will cause petitioner more than de minimis harm (assuming, as we must in evaluating the harm resulting from compliance, that petitioner is correct on the merits of his claims). Compliance will compel the company to allow union officials to enter its premises (and in a position of apparent authority, at that), notwithstanding its common-law right to exclude them, cf. Lechmere, Inc. v. NLRB, 502 U. S. 527, 534-535 (1992). And compliance will provide at least some confidential business information to officers of the union. (The UMWA's contention, on which the Court relies, that it is "speculative" whether a nonemployee miners' representative will be able to accompany the walk-arounds means only that such a representative may not always be able to do so. He will surely often be able to do so, since the statute requires that he "be given an opportunity to accompany" the inspector. 30 U. S. C. 813(f).)

In my view, however, the preclusion of pre-enforcement

judicial review is constitutional whether or not compliance produces irreparable harm—at least if a summary penalty does not cause irreparable harm (e. g., if it is a recoverable summary fine) or if judicial review is provided before a penalty for noncompliance can be imposed. (The latter condition exists here, as it does in most cases, because the penalty for noncompliance can only be imposed in court.) Were it otherwise, the availability of pre-enforcement challenges would have to be the rule rather than the exception, since complying with a regulation later held invalid almost always

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