Amicus Curiae Brief — Joseph David Robertson, Petitioner v. United States

Supreme Court briefDec 10, 2018

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No. 18-609

In the

Supreme Court of the United States

JOSEPH DAVID ROBERTSON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE CENTER

FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONER

JOHN C. EASTMAN

Counsel of Record

ANTHONY T. CASO

Center for Constitutional

Jurisprudence

c/o Dale E. Fowler School of Law

Chapman University

One University Drive

Orange, CA 92866

(877) 855-3330

jeastman@chapman.edu

Counsel for Amicus Curiae for

Center for Constitutional Jurisprudence

QUESTION PRESENTED

1. Does the Army Corps of Engineers’ interpretation

of the Clean Water Act as extending to ponds more

than forty miles away from navigable waterways

exceed the bounds of Congress’s Commerce Clause

powers?

TABLE OF CONTENTS

QUESTION PRESENTED.......................................... i

TABLE OF AUTHORITIES...................................... iii

INTEREST OF AMICUS CURIAE.............................1

SUMMARY OF ARGUMENT .....................................1

REASONS FOR GRANTING THE WRIT ..................2

I. The Army Corps of Engineers’ Interpretation of the

Clean Water Act’s Jurisdictional Reach Far Exceeds

Congress’s Power to Regulate Commerce Among the

States, As Originally Conceived. ..................................... 2

II. Even Under the Expansive View of the Commerce Power

That This Court Has Previously Approved, The Corps’

Interpretation Is Excessive. .............................................. 7

CONCLUSION .......................................................... 10

iii

TABLE OF AUTHORITIES

Cases

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935).............................................. 4, 6

Army Corps of Engineers v. Hawkes Co., Inc.,

136 S. Ct. 1807 (2016)............................................ 10

Baldwin v. Fish and Game Comm’n of Mont.,

436 U.S. 371 (1978).................................................. 4

Bowman v. Railway Co.,

125 U.S. 465 (1888).................................................. 4

Brown v. Maryland,

25 U.S. (12 Wheat.) 419 (1827) ............................... 4

Carter v. Carter Coal Co.,

298 U.S. 238 (1936).............................................. 5, 8

Corfield v. Coryell,

6 F. Cas. 546, 550 (C.C.E.D.Pa. 1823) ................ 2, 3

Garcia v. San Antonio Metro. Trans. Auth.,

469 U.S., 528 (1985)................................................. 5

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) ........................... passim

In re Rahrer,

140 U.S. 545 (1891).................................................. 4

Kidd v. Pearson,

128 U.S. 1 (1888)...................................................... 4

Leisy v. Hardin,

135 U.S. 100 (1890).................................................. 4

M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ................................. 8

Mobile Co. v. Kimball,

102 U.S. 691 (1880).................................................. 4

NFIB v. Sebelius, 132 S. Ct. 2566 (2012) ........... 10, 11

Rapanos v. United States,

547 U.S. 715 (2006).............................................. 1, 9

Solid Waste Agency of Northern Cook County v. U.S.

Army Corps of Engineers,

531 U.S. 159 (2001).......................................... 1, 8, 9

The License Cases,

46 U.S. (5 How.) 504 (1847) ..................................... 4

United States v. E.C. Knight,

156 U.S. 1 (1895).............................................. 3, 4, 5

United States v. Lopez,

514 U.S. 549 (1995).................................... 2, 5, 6, 10

United States v. Morrison,

529 U.S. 598 (2000)........................................ 1, 3, 10

Wickard v. Filburn, 317 U.S. 111 (1942) .................... 7

Statutes and Constitutional Provisions

Federal Water Pollution Control Act Amendments of

1972, Pub. L. No 92-500 § 101(a), 86 Stat. 816

(1972) (Clean Water Act) ............................... passim

U.S. Const. Art. I, § 8, cl. 3 ............................... passim

Other Authorities

The Federalist No. 48, (J. Madison) ......................... 11

Rules

Sup. Ct. Rule 37.2(a) ................................................... 1

Sup. Ct. Rule 37.6........................................................ 1

INTEREST OF AMICUS CURIAE1

The Center for Constitutional Jurisprudence is the

public interest law arm of the Claremont Institute,

whose stated mission is to restore the principles of the

American founding to their rightful and preeminent

authority in our national life, including the fundamental Commerce Clause and federalism principles

implicated by this case. The Center has previously

appeared before this Court as amicus curiae in such

related cases as Rapanos v. United States, 547 U.S. 715

(2006); Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers, 531 U.S. 159 (2001)

(“SWANCC”); and United States v. Morrison, 529 U.S.

598 (2000).

SUMMARY OF ARGUMENT

On three occasions, this Court has suggested that

broad interpretations of the Clean Water Act implicate constitutional concerns over the outer limits of

Congress’s Commerce Clause powers. Importantly, in

SWANCC, this Court noted that the U.S. Army Corps

of Engineers’ interpretation of the Clean Water Act as

extending to non-navigable puddles visited by migratory birds raised serious concerns about “whether

Congress could exercise such authority consistent

with the Commerce Clause….” 531 U.S. at 163. This

Court held that the Army Corps of Engineers had in-

1 Pursuant to Rule 37.2(a), all parties were notified of and have

consented to the filing of this brief. In accordance with Rule 37.6,

counsel affirms that no counsel for any party authored this brief

in whole or in part and that no person or entity other than amicus made a monetary contribution to fund the preparation and

submission of this brief.

correctly interpreted the powers Congress had delegated to it, however, and therefore never reached the

constitutional question. Id. But the cautionary red

flag raised by this Court appears to have had no effect

on either the EPA or the Army Corps of Engineers,

which have both continued to interpret their powers

under the Clean Water Air more broadly than Congress’s power under the Commerce Clause permits.

This case presents the opportunity for this Court to

definitively reject the notion that the Commerce

Clause can be read so broadly has to reach wholly intrastate conduct involving non-navigable waters.

REASONS FOR GRANTING THE WRIT

I. The Army Corps of Engineers’ Interpretation

of the Clean Water Act’s Jurisdictional

Reach Far Exceeds Congress’s Power to Regulate Commerce Among the States, As Originally Conceived.

As originally conceived, Congress’s power under

the Commerce Clause was limited to the regulation of

interstate trade. See, e.g., Corfield v. Coryell, 6 F. Cas.

546, 550 (C.C.E.D.Pa. 1823) (Washington, J., on circuit) (“Commerce with foreign nations, and among the

several states, can mean nothing more than intercourse with those nations, and among those states, for

purposes of trade, be the object of the trade what it

may”); United States v. Lopez, 514 U.S. 549, 585

(1995) (Thomas, J., concurring) (“At the time the original Constitution was ratified, ‘commerce’ consisted of

selling, buying, and bartering, as well as transporting

for these purposes”). Indeed, in the first major case

arising under the clause to reach this Court, it was

contested whether the Commerce Clause even extended so far as to include “navigation.” Chief Justice

Marshall, for the Court, held that it did, but even under his definition, “commerce” was limited to “intercourse between nations, and parts of nations, in all its

branches.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 190

(1824); see also Corfield, 6 F. CAS., at 550 (“Commerce

... among the several states … must include all the

means by which it can be carried on, [including] …

passage over land through the states, where such passage becomes necessary to the commercial intercourse

between the states”).

The Gibbons Court specifically rejected the notion

“that [commerce among the states] comprehend[s]

that commerce, which is completely internal, which is

carried on between man and man in a State, or between different parts of the same State, and which

does not extend to or affect other States.” Gibbons, 22

U.S., at 194 (quoted in Morrison, 529 U.S. at 616 n.7).

In other words, for Chief Justice Marshall and his colleagues, the Commerce Clause did not even extend to

trade carried on between different parts of a state.

The notion that the power to regulate commerce

among the states included the power to regulate

wholly intrastate water ponds more than forty miles

from any navigable waterway, therefore, would have

been completely foreign to them.

This originally narrow understanding of the Commerce Clause continued for nearly a century and a

half. Manufacturing was not included in the definition

of commerce, held the Court in United States v. E.C.

Knight, 156 U.S. 1, 12 (1895), because “Commerce succeeds to manufacture, and is not a part of it.” “The fact

that an article is manufactured for export to another

State does not of itself make it an article of interstate

commerce ....” Id. at 13; see also Kidd v. Pearson, 128

U.S. 1, 20 (1888) (upholding a state ban on the manufacture of liquor, even though much of the liquor so

banned was destined for interstate commerce). Neither were retail sales included in the definition of

“commerce.” See The License Cases, 46 U.S. (5 How.)

504 (1847) (upholding state ban on retail of liquor, as

not subject to Congress’s power to regulate interstate

commerce); see also A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495, 542, 547 (1935) (invalidating federal law regulating in-state retail sales of

poultry that originated out-of-state and fixing the

hours and wages of the intrastate employees because

the activity related only indirectly to commerce).

For the Founders and for the Courts which decided

these cases, regulation of such activities as retail

sales, manufacturing, and agriculture (as well as local

land use), was part the police powers reserved to the

States, not part of the power over interstate commerce

delegated to Congress. See, e.g., E.C. Knight, 156 U.S.,

at 12 (“That which belongs to commerce is within the

jurisdiction of the United States, but that which does

not belong to commerce is within the jurisdiction of

the police power of the State”) (citing Gibbons, 22 U.S.

(9 Wheat.) at 210; Brown v. Maryland, 25 U.S. (12

Wheat.) 419, 448 (1827); The License Cases, 46 U.S. (5

How.) at 599; Mobile Co. v. Kimball, 102 U.S. 691

(1880); Bowman v. Railway Co., 125 U.S. 465 (1888);

Leisy v. Hardin, 135 U.S. 100 (1890); In re Rahrer, 140

U.S. 545, 555 (1891); Baldwin v. Fish and Game

Comm’n of Mont., 436 U.S. 371 (1978). And, as the

Court noted in E.C. Knight, it was essential to the

preservation of the states and therefore to liberty that

the line between the two powers be retained:

It is vital that the independence of the commercial power and of the police power, and the delimitation between them, however sometimes

perplexing, should always be recognized and

observed, for, while the one furnishes the

strongest bond of union, the other is essential

to the preservation of the autonomy of the

States as required by our dual form of government ....

156 U.S. at 13; see also Carter v. Carter Coal Co., 298

U.S. 238, 301 (1936) (quoting E.C. Knight); Garcia v.

San Antonio Metro. Trans. Auth., 469 U.S., 528, 572

(1985) (Powell, J., dissenting, joined by Chief Justice

Burger and Justices Rehnquist and O’Connor) (“federal overreaching under the Commerce Clause undermines the constitutionally mandated balance of power

between the States and the Federal Government, a

balance designed to protect our fundamental liberties”).

While these decisions have since been criticized as

unduly formalistic, the “formalism”—if it can be called

that at all—is mandated by the text of the Constitution itself. See, e.g., Lopez, 514 U.S. at 553 (“limitations on the commerce power are inherent in the very

language of the Commerce Clause”) (citing Gibbons);

id. at 586 (Thomas, J., concurring) (“the term ‘commerce’ was used in contradistinction to productive activities such as manufacturing and agriculture”). And

it is a formalism that was recognized by Chief Justice

Marshall himself, even in the face of a police power

regulation that had a “considerable influence” on commerce:

The object of [state] inspection laws, is to improve the quality of articles produced by the labour of a country; to fit them for exportation; or,

it may be, for domestic use. They act upon the

subject before it becomes an article of foreign

commerce, or of commerce among the States,

and prepare it for that purpose. They form a

portion of that immense mass of legislation [reserved to the States] .... No direct general power

over these objects is granted to Congress; and,

consequently, they remain subject to State legislation.

Gibbons, 22 U.S. at 203; see also id. at 194-95 (“Comprehensive as the word ‘among’ is, it may very

properly be restricted to that commerce which concerns more States than one .... The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the

sentence, must be the exclusively internal commerce

of a State”). As this Court noted in Lopez, the “justification for this formal distinction was rooted in the fear

that otherwise ‘there would be virtually no limit to the

federal power and for all practical purposes we would

have a completely centralized government.’” 514 U.S.

at 555 (quoting Schechter Poultry, 295 U.S. at 548).

As should be obvious, the interpretation of the

Clean Water Act at issue here is not a regulation of

“commerce among the states,” as that phrase was understood by those who framed and those who ratified

the Constitution.

II. Even Under the Expansive View of the Commerce Power That This Court Has Previously

Approved, The Corps’ Interpretation Is Excessive.

To be sure, this Court upheld a vastly expanded

exercise of power under the Commerce Clause threequarters of a century ago in Wickard v. Filburn, 317

U.S. 111 (1942). In that case, this Court allowed federal power to reach well beyond the regulation of interstate commerce, to encompass as well the power to

legislate on intrastate matters so long as there was a

“substantial economic effect on interstate commerce.”

Id. at 125. But even under that broad reading, which

already presses (indeed, exceeds) constitutional limits, the Corps’ claim here is extremely problematic. As

noted in the petition, the ponds at issue here are more

than forty miles from any navigable water, and hence

more than forty miles from any plausible connection

to interstate commerce.

Instead, as the Clean Water Act itself makes clear,

Congress’s purpose was only tangentially related to

interstate commerce. It was “to restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters.” Federal Water Pollution Control Act

Amendments of 1972, Pub. L. No 92-500 § 101(a), 86

Stat. 816, 816 (1972). That is a police power purpose

that, only in extreme contexts, might qualify as a “necessary and proper” means of aiding the navigability of

the nation’s interstate waterways, and hence of furthering Congress’s enumerated power to regulate

commerce among the states. But when the purpose is

applied in contexts far removed from navigable waters, as the Corps has done here, the police power goal

can no longer even plausibly be viewed as a means to

a Commerce Clause end. Instead, it serves as a police

power end in and of itself. Because Congress itself

could not use its discretionary power over means in

furtherance of ends not granted, then a fortiorari a

regulatory agency cannot do so by its own expansive

regulations. As Chief Justice Marshall noted in

M’Culloch v. Maryland: “[S]hould congress, under the

pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the [national]

government; it would become the painful duty of this

tribunal … to say, that such an act was not the law of

the land.” M’Culloch v. Maryland, 17 U.S. (4 Wheat.)

316, 423 (1819); see also Carter Coal, 298 U.S. at 317

(Hughes, C.J., separate opinion) (“Congress may not

use this protective [commerce] authority as a pretext

for the exertion of power to regulate activities and relations within the states which affect interstate commerce only indirectly”).

This Court has never directly addressed the constitutionality of the Clean Water Act as it has been

extended by regulation to reach minor waters far removed from navigable interstate waterways. But it

has raised concerns on multiple occasions about

whether Congress could authorize such regulations

without exceeding its Commerce power.

First, in Solid Waste Agency v. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), this Court invalidated the Corps’ claim to jurisdiction over sand

and gravel pits that were used as a habitat by migratory birds. Id. at 167. This Court noted in the case that

the Corps’ interpretation raised the constitutional

question of “whether Congress could exercise such authority consistent with the Commerce Clause.” Id. at

162. It also found that the Corps’ claim raised “significant constitutional questions” because it “would result in a significant impingement of the States' traditional and primary power over land and water use.”

Id. at 174. But it nevertheless invalidated the Corps’

migratory bird rule on statutory grounds.

Second, the plurality opinion by Justice Scalia in

Rapanos v. United States, 547 U.S. 715 (2006), joined

by Chief Justice Roberts and Justices Thomas, concluded that the Act did not extend to “wetlands with

only an intermittant, physically remote hydrologic

connection,” but rather extended to “only those wetlands with a continuous connection” to bodies that are

‘waters of the United States’ in their own right.” Rapanos, at 742 (Scalia, J., plurality) (emphasis in original). Justice Scalia reached that conclusion in part because, as in SWANCC, “the Corps’ interpretation

stretches the outer limits of Congress's commerce

power and raises difficult questions about the ultimate scope of that power.” Id. at 738. Justice Kennedy

likewise acknowledged in his opinion concurring in

the judgment that “a water or wetland must possess a

‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” Id. at

759 (Kennedy, J., concurring in the judgment) (quoting SWANCC, 121 S. Ct., at 675). In contrast, he

noted, “the Corps has construed the term ‘waters of

the United States’ to include not only waters susceptible to use in interstate commerce—the traditional understanding of the term ‘navigable waters of the

United States,’ but also tributaries of those waters

and, of particular relevance here, wetlands adjacent

to those waters or their tributaries.” Id. at 760 (emphasis added).

Most recently, in Army Corps of Engineers v.

Hawkes Co., Inc., 136 S. Ct. 1807 (2016), Justice Kennedy, joined by Justices Thomas and Alito, wrote a

separate concurrence to observe that “the reach and

systemic consequences of the Clean Water Act remain

a cause for concern.” Id. at 1816. Justice Kennedy further warned that the Act “raises troubling questions

regarding the Government’s power to cast doubt on

the full use and enjoyment of private property

throughout the Nation.” Id.

Given the criminal sentence imposed on Mr. Robertson by the courts below, this case presents a particularly salient opportunity for this Court to resolve definitely whether the Corps’ expansive interpretation of

the Clean Water Act exceeds Congress’s power to regulate commerce among the states.

CONCLUSION

The federal government undoubtedly has broad

authority under the Commerce Clause, yet that authority has limits. See NFIB v. Sebelius, 132 S. Ct.

2566, 2587 (2012); Morrison, 529 U.S. at 625-26;

Lopez, 514 U.S. at 560. Indeed, the Court in Gibbons

explained, “[T]he enlightened patriots who framed our

constitution and the people who adopted it, must be

understood to have employed words in their natural

sense, and to have intended what they have said.” 22

U.S. (9 Wheat.) at 188. So the power delegated to Congress to regulate commerce among the states must involve activity that is both interstate and commerce.

As James Madison warned, and as this Court recognized in NFIB, expansive interpretations of the Commerce power would “permit[] Congress to reach beyond the natural extent of its authority, ‘everywhere

extending the sphere of its activity and drawing all

power into its impetuous vortex.’” NFIB, 132 S. Ct. at

2589 (citing The Federalist No. 48, at 309 (J. Madison,

Rossiter ed.)). At a minimum, the navigable waters of

the United States should have a clear connection to

interstate commerce.

Because the Corps’ interpretation of the Clean Water Act, upheld by the court below, extends well beyond the power actually delegated to Congress to regulate commerce among the states, the petition for writ

of certiorari should be granted, and the decision of the

Ninth Circuit below should be reversed.

December 2018

Respectfully submitted,