Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 22 (1994)

Page:   Index   Previous  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22

Cite as: 510 U. S. 200 (1994)

Opinion of Scalia, J.

produces the irreparable harm of nonrecoverable compliance costs. Petitioner's claim is that the imposition of a choice between (1) complying with what the Government says to be the law, and (2) risking potential penalties (without a prior opportunity to challenge the law in district court) denies due process. This is similar to the constitutional challenge brought in the line of cases beginning with Ex parte Young, 209 U. S. 123 (1908), but with one crucial difference. As the Court notes, see ante, at 217-218, petitioner, unlike the plaintiff in Young, had the option of complying and then bringing a judicial challenge. The constitutional defect in Young was that the dilemma of either obeying the law and thereby for-going any possibility of judicial review, or risking "enormous" and "severe" penalties, effectively cut off all access to the courts. See 209 U. S., at 146-148. That constitutional problem does not exist here, nor does any other of which I am aware. Cf. Bailey v. George, 259 U. S. 16, 19 (1922). I would decide the second constitutional challenge (Part IV) on the simple grounds that the company can obtain judicial review if it complies with the agency's request, and can obtain presanction judicial review if it does not.


Page:   Index   Previous  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22

Last modified: October 4, 2007