Amicus Curiae Brief — Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al.

i

No. 21-454

In the

Supreme Court of the United States

MICHAEL SACKETT, ET UX.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE THE

CLAREMONT INSTITUTE’S CENTER FOR

CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONERS

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

CONSTITUTIONAL COUNSEL GROUP

174 W. Lincoln Ave., #620

Anaheim, CA 92805

(916) 601-1916

atcaso@ccg1776.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

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

ARGUMENT ...............................................................2

I.

The Court Should Reexamine its Decision to

Defer to the Agencies’ Interpretation of the

Clean Water Act. ......................................... 2

A.

The Constitution requires separation of

powers to protect individual liberty. ........... 3

B.

Chevron deference violates

constitutionally mandated separation of

powers. .......................................................... 6

i. Deference to agency interpretation of

statutory texts allows the Executive to

exercise legislative power. ................................6

ii.

Deference to agency interpretation of

statutory texts allows the Executive to

exercise judicial power. ....................................8

II.

The Clean Water Act Only Applies to

Navigable Waters. ..................................... 10

A.

Proper interpretation of the Clean Water

Act requires adherence to the principle

of enumerated powers. ............................... 10

B.

Regulation of “wetlands” is outside the

scope of Congress’s powers to regulate

the channels of interstate commerce. ........ 17

CONCLUSION ..................................................... 26

ii

TABLE OF AUTHORITIES

Cases

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

295 U.S. 495 (1935).................................... 18, 20, 22

Arizona v. Evans,

514 U.S. 1 (1995).................................................... 14

Atascadero State Hospital v. Scanlin,

473 U.S. 234 (1985)................................................ 14

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

436 U.S. 371 (1978)................................................ 19

Baldwin v. United States,

140 S.Ct. 690 (2020)..................................... 1, 3, 7, 9

Bartkus v. People of State of Illinois,

359 U.S. 121 (1959)................................................ 11

Bowman v. Railway Co.,

125 U.S. 465 (1888)................................................ 18

Brown v. Maryland,

25 U.S. (12 Wheat.) 419 (1827) ............................. 18

Brzonkala v. Virginia Polytechnic Institute and State

University,

169 F.3d 820, 840 (4th Cir. 1999), aff’d sub nom,

United States v. Morrison, 529 U.S. 598 (2000) ... 24

Buckley v. Valeo,

424 U.S. 1 (1976)......................................................6

Camps Newfound/Owatonna v. Town of Harrison,

Maine,

520 U.S. 564 (1997)................................................ 21

Cardwell v. Am. River Bridge Co.,

113 U.S. 205 (1885)................................................ 21

iii

Carter v. Carter Coal,

298 U.S. 238 (1936)................................................ 19

City of Arlington v. FCC,

569 U.S. 290 (2013)..................................................2

Corfield v. Coryell,

6 F. Cas. 546 (C.C.E.D.Pa. 1823) .......................... 17

Department of Transportation v. Association of

American Railroads,

575 U.S. 43 (2015)................................................ 1, 7

Escanaba & Lake Michigan Transp. Co. v. City of

Chicago,

107 U.S. 678 (1883)................................................ 21

FERC v. Mississippi,

456 U.S. 742 (1982)................................................ 15

Garcia v. San Antonia Metropolitan Transportation

Authority,

469 U.S. 528 (1985).............................. 11, 14, 15, 19

Gibbons v. Ogden,

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

Gregory v. Ashcroft,

501 U.S. 452 (1991).................................... 13, 14, 15

In re Rahrer,

140 U.S. 545 (1891)................................................ 19

INS v. Chadha,

462 U.S. 919 (1983)........................................ passim

Kidd v. Pearson,

128 U.S. 1 (1888).................................................... 18

Kilbourn v. Thompson,

103 U.S. 168 (1880).............................................. 5, 6

iv

Kisor v. Wilke,

139 S.Ct. 2400 (2019)...............................................1

Leisy v. Hardin,

135 U.S. 100 (1890)................................................ 18

M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ............. 13, 14, 16, 21

Marbury v. Madison,

1 Cranch 137 (1803).................................................3

Michigan v. EPA,

576 U.S. 743 (2015).............................................. 2, 8

Miller v. City of New York,

109 U.S. 385 (1883)................................................ 21

Missouri v. Illinois,

180 U.S. 208 (1901)................................................ 24

Mistretta v. United States,

488 U.S. 361 (1989)..................................................5

Mobile Co. v. Kimball,

102 U.S. 691 (1880)................................................ 18

Monongahela Nav. Co. v. U.S.,

148 U.S. 312 (1893)................................................ 21

N.L.R.B. v. Jones & Laughlin Steel Corp.,

301 U.S. 1 (1937).................................................... 22

New York v. United States,

505 U.S. 144 (1992)................................................ 10

Perez v. Mortgage Bankers Ass’n,

575 U.S. 92 (2015)............................................ 1, 7, 8

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995)..................................................3

v

Rapanos v. United States,

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

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

531 U.S. 159 (2001)................................ 1, 22, 23, 26

The License Cases,

46 U.S. (5 How.) 504 (1847) ................................... 18

United States v. E. C. Knight Co.,

156 U.S. 1 (1895)........................................ 16, 18, 19

United States v. Lopez,

514 U.S. 549 (1995)........................................ passim

United States v. Morrison,

529 U.S. 598 (2000).................................... 14, 22, 23

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985).............................................. 2, 9

Virginia v. Tennessee,

148 U.S. 503 (1893)................................................ 24

West Virginia ex rel. Dyer v. Sims,

341 U.S. 22 (1951).................................................. 24

West Virginia v. EPA,

No. 20-1530 (2021) ...................................................1

Other Authorities

Adams, John, Letter XLIX, 1 A Defense of the

Constitutions of Government of the United

States of America (The Lawbook Exchange Ltd.

3rd ed., 2001) ............................................................6

Blackstone, William, Commentaries on the Laws of

England (William S. Hein & Co. ed., 1992) ............4

vi

Brutus, Essay XV (1788), reprinted in 2 The

Complete Anti-Federalist (Herbert J. Storing ed.

1981) .........................................................................5

Federalist No. 9 ...........................................................4

Federalist No. 22 ....................................................... 10

Federalist No. 28 ....................................................... 15

Federalist No. 33 ....................................................... 15

Federalist No. 39 ....................................................... 13

Federalist No. 42 ....................................................... 10

Federalist No. 45 ................................................. 13, 15

Federalist No. 47 ....................................................... 11

Federalist No. 48 .........................................................4

Federalist No. 78 .........................................................8

Jefferson, Thomas, Jefferson to Adams, The AdamsJefferson Letters (Lester J. Cappon ed., 1959).......4

Letter from Tench Coxe to the Virginia

Commissioners at Annapolis (Sept. 13, 1786) ...... 10

Locke, John, The Second Treatise on Government

(Thomas P. Peardon, ed.,1997)................................4

Montesquieu, The Spirit of the Laws (Franz

Neumann ed. & Thomas Nugent trans., 1949) ......4

Rawle, William, A View of the Constitution of the

United States ...........................................................9

Story, Joseph, Commentaries on the Constitution,

(1833)........................................................................8

Wilson, James, Speech at the Pennsylvania

Ratifying Convention (Nov. 26, 1787) ............. 12, 13

vii

Constitution

U.S. Const. Amend. X................................................ 13

U.S. Const. art. I, § 1 ............................................. 7, 14

U.S. Const. art. I, § 7, cl. 2 ..........................................7

U.S. Const. Art. I, § 8 ................................................ 14

U.S. Const., Art. I, § 10 ............................................. 24

Rules

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

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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 core

principles of Separation of Powers and that our federal government is one of limited, enumerated power.

The Center has previously appeared before this Court

as amicus curiae in several cases addressing these issues, including West Virginia v. EPA, No. 20-1530

(2021); Baldwin v. United States, 140 S.Ct. 690 (2020);

Kisor v. Wilke, 139 S.Ct. 2400 (2019); Department of

Transportation v. Association of American Railroads,

575 U.S. 43 (2015); Perez v. Mortgage Bankers Ass’n,

575 U.S. 92 (2015); Rapanos v. United States, 547 U.S.

715 (2006); and Solid Waste Agency of Northern Cook

County v. United States Army Corps of Engineers, 531

U.S. 159 (2001), to name a few.

SUMMARY OF ARGUMENT

One might be tempted to claim that arguments

about whether so-called “wetlands” fall within the

Clean Water Act’s regulation of navigable waters is

just so much “water under the bridge.” The problem

with such a claim is that the respondents have built

their bridge in a place where there is no water, navigable or otherwise. This case demonstrates that the

Environmental Protection Agency and the Army

1 All parties consented to the filing of this amicus 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.

2

Corps of Engineers have pulled off a naked power

grab. Not only have they usurped the power of Congress to make the laws and the power of the courts to

interpret those laws, but they have also usurped state

and local governments’ police power authority to regulate local land use. This was accomplished because,

decades ago, this Court “deferred” to the agencies’ interpretation of the Clean Water Act pursuant to the

Court’s troubled Chevron deference doctrine.

The Court should reexamine its decision to defer

to the agencies’ rewriting of the statutory text and

rule that the Act only extends to the limits of Congress’s power under the Commerce Clause – regulation of the navigable waters as a channel of interstate

commerce.

ARGUMENT

I.

The Court Should Reexamine its Decision

to Defer to the Agencies’ Interpretation of

the Clean Water Act.

In United States v. Riverside Bayview Homes,

Inc., this Court deferred to the Army Corps of Engineers “interpretation” of the Clean Water Act to allow

the Corps to include “wetlands” adjacent to a navigable water as part of the navigable water of the United

States. 474 U.S. 121, 131 (1985). That decision to defer to the Executive on an issue of statutory interpretation was based on the doctrine of Chevron deference.

Members of this Court have identified the constitutionally dubious nature of this doctrine. Michigan v.

EPA, 576 U.S. 743, 761-62 (2015) (Thomas, J., concurring); City of Arlington v. FCC, 569 U.S. 290, 315

(2013) (Roberts, C.J., dissenting). Deference to the

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Executive on matters of statutory interpretation violates the separation of powers, one of the core features

of our constitutional structure.

A. The Constitution requires separation of

powers to protect individual liberty.

Essential for the preservation of individual liberty, the Constitution’s separation of powers is “a

structural safeguard rather than a remedy to be applied only when specific harm, or risk of specific harm,

can be identified.” Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211, 239 (1995) (emphasis in original). It is

“a prophylactic device, establishing high walls and

clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.” Id.

Several members of this Court have recognized

that various doctrines of deference to the unelected,

unaccountable, and largely-unknown federal bureaucracy might be difficult to reconcile with the separation of powers’ “high walls.” Id.

There is good reason to question the constitutionality of Chevron deference. Deferring to the Executive

on the meaning of statutory texts contravenes the separation of powers—a structural feature of the federal

constitution considered vital by the Framers and Ratifiers—because it gives to the agencies the judiciary’s

power “to say what the law is.” See Marbury v. Madison, 1 Cranch 137, 177 (1803). Chevron deference’s

denigration of the separation of powers attacks the

constitution’s primary means of protecting individual

liberty. Baldwin v. U.S., 140 S.Ct. at 691 (Thomas, J.,

dissenting from denial of certiorari).

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Separation of the powers of government is foundational to our constitutional system precisely because the Framers and Ratifiers of the Constitution

understood well that this principle was necessary to

protect individual liberty. Accordingly, the founding

generation relied on the works of Baron de Montesquieu, William Blackstone, and John Locke for the

proposition that institutional separation of powers

was an essential protection against arbitrary government. See e.g. Montesquieu, The Spirit of the Laws

152 (Franz Neumann ed. & Thomas Nugent trans.,

1949); 1 William Blackstone, Commentaries on the

Laws of England 58 (William S. Hein & Co. ed., 1992);

John Locke, The Second Treatise on Government 82

(Thomas P. Peardon, ed.,1997).

These warnings against consolidated power resulted in structural separation of power protections in

the design of the federal government itself. Federalist

No. 51, The Federalist Papers, Clinton Rossiter, ed. at

318 (Madison); Federalist No. 47 at 298-99 (Madison);

Federalist No. 9 at 67 (Hamilton); see also Thomas

Jefferson, Jefferson to Adams, The Adams-Jefferson

Letters 199 (Lester J. Cappon ed., 1959). That design

divided the power of the national government into

three distinct branches, by vesting the legislative authority in Congress, the executive power in the President, and the ultimate judicial responsibilities in this

Court. INS v. Chadha, 462 U.S. 919, 951 (1983).

The ratification debates demonstrate the importance of this separation to the founding generation. Accepting as a given that power needed to be

separated, the ratifying generation debated whether

the proposed constitutional text separated power

enough. Federalist No. 48, at 305 (Madison). This

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was a rare issue on which the federalists and the antifederalists agreed. Even the anti-federalist Brutus

noted that “[when] power is lodged in the hands of

men independent of the people, and of their representatives . . . no way is left to controul them.” Brutus,

Essay XV (1788), reprinted in 2 The Complete AntiFederalist 437, 442 (Herbert J. Storing ed. 1981). In

short, the ratifying generation suffered from no agnosticism or crisis of confidence about the urgent imperative to diffuse power both horizontally (among the coordinate federal branches) and vertically (between the

United States and the sovereign States).

Alarmed that just stopping one branch from exercising the powers of another would prove insufficient,

the Framers designed a system that vested each

branch with the power necessary to resist encroachments by another. Federalist No. 48, at 305 (Madison). Madison explained that what the anti-federalists saw as a violation of separation of powers was in

fact the checks and balances necessary to enforce separation. Id.; Federalist No. 51, at 317-19 (Madison);

see Mistretta v. United States, 488 U.S. 361, 380

(1989).

To preserve the structure set out in the Constitution, and thus protect individual liberty, the constant

pressures of each branch to exceed the limits of their

authority must be resisted. So much so that any attempt by any branch of government to encroach on another branch’s powers, even if the other branch acquiesces in the encroachment, is void. Chadha, 462 U.S.

at 957-58; Kilbourn v. Thompson, 103 U.S. 168, 191

(1880). The duty falls on the judicial branch, in particular, to enforce this essential protection of liberty.

6

Chadha, 462 U.S. at 944-46. To be sure, the Constitution was designed to pit ambition against ambition

and power against power. Federalist No. 51, at 319

(Madison); see also John Adams, Letter XLIX, 1 A Defense of the Constitutions of Government of the

United States of America 323 (The Lawbook Exchange Ltd. 3rd ed., 2001). But when this structural

competition of interests does not stop an encroachment, this Court is obligated to void acts that overstep

the bounds of separated power. Buckley v. Valeo, 424

U.S. 1, 123 (1976); Kilbourn v. Thompson, 103 U.S. at

199. Judicial engagement at such critical moments is

an imperative and a virtue, not a vice. It is a principal

reason that the judiciary was created.

B. Chevron deference violates constitutionally mandated separation of powers.

i. Deference to agency interpretation of

statutory texts allows the Executive to

exercise legislative power.

Chevron deference involves an explicit recognition that administrative agencies make “law”—that is

to say, agencies promulgate substantive legal obligations (or prohibitions) that bind individuals. Pursuant to the doctrine, courts may not interfere with

agency lawmaking so long as the congressional enactment is ambiguous, the agency has both expertise and

rulemaking authority, and the agency’s interpretation

is at least a possible interpretation of the law. The

courts have recognized that agencies are clearly involved in lawmaking when they enact substantive

rules that are subject to Chevron deference. See

Mead, 533 U.S. at 233. There are two problems with

deference in this regard. First, the Constitution assigns lawmaking exclusively to Congress. U.S. Const.

7

art. I, § 1. Second, reflecting the Founders’ fears over

the power of legislative branch, the Constitution specifies a particular procedure through which laws are to

be made. U.S. Const. art. I, § 7, cl. 2. Agencies do not

follow that procedure when promulgating regulations.

See 5 U.S.C. § 553

Article I, section 1 of the Constitution provides:

“All legislative Powers herein granted shall be vested

in a Congress of the United States, which shall consist

of a Senate and House of Representatives.” U.S.

Const. art. I, § 1, cl. 1 (emphasis added). This is the

first of the three “vesting clauses” that set out the

basic plan of government under the Constitution and

that provide the framework for the scheme of separated powers. Powers vested in one branch under a

vesting clause cannot be ceded to or usurped by another. Baldwin v. U.S., 140 S.Ct. at 691 (Thomas, J.,

dissenting from denial of certiorari); Association of

American Railroads, 575 U.S. at 67-68 (Thomas, J.,

concurring).

The legislative power is the power to alter “the

legal rights, duties and relations of persons.” See

Chadha, 462 U.S. at 952. This is the same definition

given to “substantive rules” adopted by administrative agencies. Section 551 of the Administrative Procedure Act defines the term “rule” as an agency statement that prescribes “law or policy.” These are “laws”

that impose “legally binding obligations or prohibitions” on individuals. Perez, 575 U.S. at 123 n.4

(Thomas, J., concurring). It is difficult to see much

space between agency “rules” and the “legislation”

that Article I of the Constitution reserved exclusively

to Congress. Deference under Chevron and related

deference doctrines makes any such space evaporate

8

and results in the Executive exercising Congress’s

power to make law. See Michigan, 576 U.S. at 762

(Thomas, J., concurring).

ii. Deference to agency interpretation of

statutory texts allows the Executive to

exercise judicial power.

Article III, § 1 of the Constitution vests the “judicial power” in the “Supreme Court and in such inferior

Courts as the Congress may … establish.” In a

scheme of separated powers, the key to judicial power

is the “interpretation of the law.” Federalist No. 78 at

404 (Alexander Hamilton); Perez, 575 U.S. at 119-20

(Thomas, J., concurring). This is a power that must

be separated from both execution and legislation.

Quoting Montesquieu, Justice Story noted that “there

is no liberty, if the judiciary power be not separated

from the legislative and executive powers.” Joseph

Story, 3 Commentaries on the Constitution, § 1568

(1833), reprinted in 4 The Founders’ Constitution 200.

The purpose of the judiciary is to stand as a neutral

arbiter between the legislative and executive

branches—a necessary check on the political branches

of government. Federalist No. 78, supra at 405 (Alexander Hamilton). The separate judicial power allows

the courts to serve as “bulwarks” for liberty. Id. This

requires that judges have the power to “declare the

sense of the law.” Id.; see Chadha, 462 U.S. at 944.

The scheme for balancing power between the

branches of government depends on each branch exercising the full extent of its power. Federalist No. 51

at 269 (Madison). Each branch of government must

support and defend the Constitution and thus must

interpret the Constitution in is own arena. United

States v. Nixon, 418 U.S. 683, 704 (1974). But in order

9

to keep the political branches in check, the courts may

not surrender their power to interpret the law to either of the political branches. The judicial branch accomplishes its role by ruling on the legality of the actions of the executive and giving “binding and conclusive” interpretations to acts of Congress. William

Rawle, A View of the Constitution of the United

States, reprinted in 4 The Founders’ Constitution 195.

Had the Constitution not assigned such a role to the

judiciary as a separate branch, the plan of government “could not be successfully carried into effect.” Id.

Chevron deference alters this framework, however, in a way that the separation of judicial from executive power is no longer complied with. It is no

longer the exclusive province of the courts to interpret

congressional enactments. Instead, the court now

treats the existence of an “ambiguity” as meaning that

Congress intended the agency, and only the agency, to

interpret the statute. So long as the agency interpretation is “reasonable,” Chevron requires the courts to

cede their judicial power to the executive and approve

the agency interpretation.

Any deference to the agency on issues of statutory

construction ignores the constitutional role of the

courts to interpret legal texts. It also ignores the provisions of the Administrative Procedure Act that assign interpretation of the statute to the courts, not the

agencies. Baldwin v. U.S., 140 S.Ct. at 692 (Thomas,

J., dissenting from denial of certiorari). This Court

should reexamine its decision in Riverside Bayview

Homes because that decision was based on the constitutionally dubious doctrine of Chevron deference.

10

II.

The Clean Water Act Only Applies to Navigable Waters.

A. Proper interpretation of the Clean Water

Act requires adherence to the principle of

enumerated powers.

When the framers of our Constitution met in

Philadelphia in 1787, it was widely acknowledged

that a stronger national government than existed under the Articles of Confederation was necessary if the

new government of the United States was going to

survive. The Continental Congress could not honor its

commitments under the Treaty of Paris; it could not

meet its financial obligations; it could not counteract

the crippling trade barriers that were being enacted

by the several states against each other; and it could

not even ensure that its citizens, especially those living on the western frontier, were secure in their lives

and property. See, e.g., Letter from Tench Coxe to the

Virginia Commissioners at Annapolis (Sept. 13, 1786),

reprinted in 3 The Founders’ Constitution 473-74 (P.

Kurland & R. Lerner eds., 1987) (noting that duties

imposed by the states upon each other were “as great

in many instances as those imposed on foreign Articles”); Federalist No. 22, at 144-45 (Hamilton) (referring to “[t]he interfering and unneighborly regulations in some States,” which were “serious sources of

animosity and discord” between the States); New York

v. United States, 505 U.S. 144, 158 (1992) (“The defect

of power in the existing Confederacy to regulate the

commerce between its several members [has] been

clearly pointed out by experience”) (quoting Federalist

No. 42 at 267 (Madison)).

11

But the framers were equally cognizant of the

fact that the deficiencies of the Articles of Confederation existed by design, due to a genuine and almost

universal fear of a strong, centralized government.

See, e.g., Bartkus v. People of State of Illinois, 359 U.S.

121, 137 (1959) (“the men who wrote the Constitution

as well as the citizens of the member States of the

Confederation were fearful of the power of centralized

government and sought to limit its power”); Garcia v.

San Antonia Metropolitan Transportation Authority,

469 U.S. 528, 568-69 (1985) (Powell, J., dissenting).

Our forebears had not successfully prosecuted the war

against the King’s tyranny merely to erect in its place

another form of tyranny.

The central problem faced by the convention delegates, therefore, was to create a government strong

enough to meet the threats to the safety and happiness of the people, yet not so strong as to itself become

a threat to the people’s liberty. See Federalist No. 51,

at 322 (Madison). The framers drew on the best political theorists of human history to craft a government

that was most conducive to that end. The idea of separation of powers, for example, evident in the very

structure of the Constitution, was drawn from Montesquieu, out of recognition that the “accumulation of

all powers, legislative, executive, and judiciary, in the

same hands … may justly be pronounced the very definition of tyranny.” Federalist No. 47, at 301 (Madison).

But the framers added their own contribution to

the science of politics, as well. In what can only be

described as a radical break with past practice, the

Founders rejected the idea that the government was

12

sovereign and indivisible. Instead, the Founders contended that the people themselves were the ultimate

sovereign, see, e.g., James Wilson, Speech at the Pennsylvania Ratifying Convention (Nov. 26, 1787), reprinted in 2 J. Wilson, The Works of James Wilson 770

(R. McCloskey ed., 1967), and could delegate all or

part of their sovereign powers, to a single government

or to multiple governments, as, in their view, was

“most likely to effect their Safety and Happiness.”

Declaration of Independence, ¶ 2. The importance of

the division of sovereign powers was highlighted by

James Wilson in the Pennsylvania ratifying convention:

I consider the people of the United States as

forming one great community, and I consider

the people of the different States as forming

communities again on a lesser scale. From

this great division of the people into distinct

communities it will be found necessary that

different proportions of legislative powers

should be given to the governments, according to the nature, number and magnitude of

their objects.

Unless the people are considered in these

two views, we shall never be able to understand the principle on which this system was

constructed. I view the States as made for

the people as well as by them, and not the

people as made for the States. The people,

therefore, have a right, whilst enjoying the

undeniable powers of society, to form either

a general government, or state governments,

in what manner they please; or to accommodate them to one another, and by this means

13

preserve them all. This, I say, is the inherent and unalienable right of the people.

James Wilson, Pennsylvania Ratifying Convention,

(Dec. 4, 1787), reprinted in 1 The Founders’ Constitution 62.

As a result, it became and remains one of the

most fundamental tenets of our constitutional system

of government that the sovereign people delegated to

the national government only certain, enumerated

powers, leaving the residuum of power to be exercised

by the state governments or by the people themselves.

See, e.g., Federalist No. 39, at 256 (Madison) (noting

that the jurisdiction of the federal government “extends to certain enumerated objects only, and leaves

to the several States a residuary and inviolable sovereignty over all other objects”); Federalist No. 45, at

292-93 (Madison) (“The powers delegated by the proposed Constitution to the federal government are few

and defined. Those which are to remain in the State

governments are numerous and indefinite”); M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819)

(Marshall, C.J.) (“We admit, as all must admit, that

the powers of the government are limited and that its

limits are not to be transcended”); Gregory v. Ashcroft,

501 U.S. 452, 457 (1991) (“The Constitution created a

Federal Government of limited powers”).

This division of sovereign powers between the

two great levels of government was not simply a constitutional add-on, by way of the Tenth Amendment.

See U.S. Const. Amend. X (“The powers not delegated

to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”). Rather, it is inherent in

the doctrine of enumerated powers embodied in the

14

main body of the Constitution itself. See U.S. Const.

Art. I, § 1 (“All legislative Powers herein granted shall

be vested in a Congress of the United States” (emphasis added)); U.S. Const. Art. I, § 8 (enumerating powers so granted); see also M’Culloch, 17 U.S. (4 Wheat.)

at 405 (“This government is acknowledged by all, to be

one of enumerated powers. The principle, that it can

exercise only the powers granted to it, … is now universally admitted”); United States v. Lopez, 514 U.S.

549, 552 (1995) (“We start with first principles. The

Constitution creates a Federal Government of enumerated powers”).

The constitutionally-mandated division of the

people’s sovereign powers between federal and state

governments was not designed to protect state governments as an end in itself, but rather “was adopted by

the Framers to ensure protection of our fundamental

liberties.” Lopez, 514 U.S. at 552 (quoting Gregory,

501 U.S. at 458); see also United States v. Morrison,

529 U.S. 598, 616 n.7 (2000) (“As we have repeatedly

noted, the Framers crafted the federal system of government so that the people’s rights would be secured

by the division of power” (citing Arizona v. Evans, 514

U.S. 1, 30 (1995) (Ginsburg, J., dissenting); Gregory,

501 U.S., at 458-59; Atascadero State Hospital v.

Scanlin, 473 U.S. 234, 242 (1985) (quoting Garcia, 469

U.S. at 572 (Powell, J., dissenting))); Garcia, 469 U.S.

at 582 (O’Connor, J., dissenting) (“This division of authority, according to Madison, would produce efficient

government and protect the rights of the people”) (citing Federalist No. 51, at 350-351 (Madison). “Just as

the separation and independence of the coordinate

branches of the Federal Government serve to prevent

the accumulation of excessive power in any one

branch, a healthy balance of power between the States

15

and the Federal Government will reduce the risk of

tyranny and abuse from either front.” Lopez, 514 U.S.

at 582 (quoting Gregory, 501 U.S., at 458); Gregory,

501 U.S. at 459 (quoting Federalist No. 28, at 180-81

(Hamilton)); id. (quoting Federalist No. 51, at 323

(Madison)); see also Garcia, 469 U.S. at 581 (O’Connor, J., dissenting) (“[The Framers] envisioned a republic whose vitality was assured by the diffusion of

power not only among the branches of the Federal

Government, but also between the Federal Government and the States” (citing FERC v. Mississippi, 456

U.S. 742, 790 (1982) (O’Connor, J., dissenting)); id. at

571 (Powell, J., dissenting) (“The Framers believed

that the separate sphere of sovereignty reserved to the

States would ensure that the States would serve as an

effective ‘counterpoise’ to the power of the Federal

Government”).

When Congress (or a federal agency, in supposed

reliance on an act of Congress) acts beyond the scope

of its enumerated powers, therefore, it does more than

simply intrude upon the sovereign powers of the

states; it acts without constitutional authority, that is,

tyrannically, and places our liberties at risk. See, e.g.,

Federalist No. 33, at 204 (Hamilton) (noting that laws

enacted by the Federal Government “which are not

pursuant to its constitutional powers, but which are

invasions of the residuary authorities of the smaller

societies … will be merely acts of usurpation, and will

deserve to be treated as such”).

Foremost among the powers not delegated to the

federal government was the power to regulate the

health, safety, and morals of the people – the so-called

police power. See, e.g., Federalist No. 45, at 292-93

(Madison) (“The powers reserved to the several States

16

will extend to all the objects which, in the ordinary

course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State”); Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1, 203 (1824) (“No direct general

power over these objects is granted to Congress; and,

consequently, they remain subject to State legislation”); United States v. E. C. Knight Co., 156 U.S. 1,

11 (1895) (“It cannot be denied that the power of a

state to protect the lives, health, and property of its

citizens, and to preserve good order and the public

morals, ‘the power to govern men and things within

the limits of its dominion,’ is a power originally and

always belong to the states, not surrendered by them

to the general government”). The powers at issue in

this case – the granting of land use permits and the

regulation of wholly intrastate “wetlands” – are

within the core of the police powers reserved to the

states or to the people.

Congress does retain some measure of discretion

to choose the means necessary for giving effect to its

enumerated powers, of course, but it cannot use its

discretionary power over means in furtherance of ends

not granted to it. 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.” 17 U.S. (4 Wheat.) at 423. Because, as described below, Congress’s attempts, as interpreted by

EPA and the Corps of Engineers, to link the vintage

exercise of the state police powers at issue here to its

power to regulate interstate commerce is pretext of

17

the highest order, Chief Justice Marshall’s admonition is directly on point: It is the duty of this Court to

say that the interpretation of the Clean Water Act

propounded by respondents is not the law of the land.

B. Regulation of “wetlands” is outside the

scope of Congress’s powers to regulate

the channels of interstate commerce.

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”); Lopez, 514 U.S. at 585 (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, 22 U.S.

(9 Wheat.), at 190; 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”).

This originally narrow understanding of the

Commerce Clause continued for nearly a century and

18

a half. Manufacturing was not included in the definition of commerce, held the Court in E.C. Knight, 156

U.S. at 12, 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 sales of liquor, as not subject to Congress’s power to regulate interstate commerce); see also A.L.A. Schecter 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 of the police powers reserved

to the States, not part of the power over 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

19

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, 298 U.S.

238, 301 (1936) (quoting E.C. Knight); Garcia, 469

U.S., at 572 (Powell, J., dissenting) (“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:

20

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 to include so-called “wetlands” that

are not channels of interstate commerce is not a regulation of “commerce among the states,” as that phrase

was understood by those who framed and those who

ratified the Constitution. The Sacketts seek to make

improvements on their own land, not engage in interstate commerce. Land, of course, is the quintessential

thing that does not move in interstate commerce. See

21

Camps Newfound/Owatonna v. Town of Harrison,

Maine, 520 U.S. 564, 609 (1997) (Thomas, J., dissenting).

As the record in this case demonstrates, respondents are seeking to regulate the Sacketts’ land. There

is no showing that this land, which is separated from

the nearest navigable water by a paved road, is in any

way related to a navigable water way that can be used

as a channel of interstate commerce.

Nor does the Necessary and Proper Clause provide a valid ground for EPA and the Corps of Engineers expansive assertion of power here. As has long

been recognized, that clause gives Congress power

over the means it will use to give effect to its enumerated powers; it does not serve as an end power unto

itself. See, e.g., Gibbons, 22 U.S. (9 Wheat.) at 187

(describing the phrase “necessary and proper” as a “

limitation on the means which may be used”); M’Culloch, 17 U.S. (4 Wheat.) at 324 (describing the Necessary and Proper Clause as merely a means clause).

There must be a regulation of commerce to which Congress hopes to give effect when it acts pursuant to the

Necessary and Proper Clause, and there is no such

regulation here. Congress sought to limit the scope of

its regulation to “navigable waters” – at least giving a

nod to the constitutional limitation that it could only

regulate waters as channels of interstate commerce.

See, e.g., Monongahela Nav. Co. v. U.S., 148 U.S. 312,

334 (1893); Cardwell v. Am. River Bridge Co., 113 U.S.

205, 205-08 (1885); Miller v. City of New York, 109

U.S. 385, 395-96 (1883); Escanaba & Lake Michigan

Transp. Co. v. City of Chicago, 107 U.S. 678, 682

(1883). It is doubtful that the Clean Water Act involves regulation of interstate commerce at all. But it

22

is beyond dispute that the Executive’s interpretation

of “navigable water” to include land puts the Act, as

interpreted, far outside of the commerce power.

Under the original view of the Commerce Clause,

therefore, this is an extremely easy case. Indeed, it is

hard to imagine regulations more removed from the

Commerce Clause power, as originally understood,

than the interpretations of the Clean Water Act put

forward by the Corps of Engineers here and its analogous “migratory bird” rule already invalidated by this

Court in SWANCC”).

Even when this Court expanded the original understanding of the Commerce Clause in order to validate New Deal legislation enacted in the wake of the

economic emergency caused by the Great Depression,

it was careful to retain certain limits lest the police

power of the States be completely subsumed by Congress. Thus, in N.L.R.B. v. Jones & Laughlin Steel

Corp., this Court stated that the power to regulate

commerce among the states “must be considered in

the light of our dual system of government and may

not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is

national and what is local and create a completely centralized government.” 301 U.S. 1, 37 (1937) (quoted

in Lopez, 514 U.S. at 557; Morrison, 529 U.S. at 608).

Similarly, Justice Cardozo noted in Schechter Poultry

that “[t]here is a view of causation that would obliterate the distinction of what is national and what is local in the activities of commerce.” 294 U.S. at 554

(1935) (Cardozo, J., concurring) (quoted in Lopez, 514

U.S. at 567; Morrison, 529 U.S. at 616 n.6).

23

These reservations were key to this Court’s decisions in Lopez and Morrison, and played a prominent

role in SWANCC as well. See Lopez, 514 U.S. at 566;

Morrison, 529 U.S. at 608; SWANCC, 531 U.S. at 17374. As in those cases, the interpretation of the Clean

Water Act at issue here does not regulate the channels

or the instrumentalities of interstate commerce. A

boat will not float on the Sackett’s property. There is

surely no way to use the so-called “wetlands” on the

property as a channel of interstate commerce.

In short, even under the expanded view of the

Commerce Clause that has been in place since the

New Deal, the interpretation of the Clean Water Act

proffered by respondents remains what it would have

been for Chief Justice Marshall: A pretext for the exercise of police powers by Congress, powers that were

and of right ought to be reserved to the States, or to

the people.

The statute enacted by Congress does not actually pretend otherwise. Its express purpose is not to

ensure the navigability of the nation’s waterways - a

proper commerce clause purpose – but is rather “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” – a clear police

power purpose. See 33 U.S.C. § 1251(a).

If the statute merely prohibited the discharge

into navigable waters of dredged or filled material, or

other pollutants that could reasonably threaten navigability, the law would arguably be both a necessary

and a proper means to further Congress’s powers under the Commerce Clause, because such discharges

could at some point threaten navigation. But the statute prohibits the discharge of “any pollutant,” not just

dredged or filled material or other pollutants that

24

would threaten navigability. 33 U.S.C. § 1311. There

is therefore no jurisdictional element that this Court

described as important in Lopez, 514 U.S. at 560.

Moreover, under respondents’ interpretation, the statute prohibits the discharge of fill even in wetlands,

which have no connection whatsoever with navigability of interstate waters. The agency here seeks to regulate land use, not navigability. There is not a Commerce Clause purpose to the federal regulation of the

Sacketts’ property.

Traditional tort and nuisance law remains available to address actions that have detrimental effects

in other states. See, e.g., Brzonkala v. Virginia Polytechnic Institute and State University, 169 F.3d 820,

840 (4th Cir. 1999), aff’d sub nom, United States v.

Morrison, 529 U.S. 598 (2000); Missouri v. Illinois,

180 U.S. 208 (1901). Even for waters that touch upon

two or more States, the States remain free to enter

into agreements to regulate the waters to their mutual benefit. See, e.g., Virginia v. Tennessee, 148 U.S.

503, 518 (1893) (describing an agreement to drain a

malarial district on the border between two States as

an example of an interstate agreement that could “in

no respect concern the United States”). And on the

chance that such an agreement might be made to the

detriment of other states, the Congressional consent

requirement of the Compacts Clause of Article I, Section 10 provides a sufficient check. U.S. Const., Art.

I, § 10, cl. 3 (“No State shall, without the consent of

Congress, … enter into any agreement or compact

with another State, or with a foreign power”); see also

West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 27

(1951) (“A compact is more than a supple device for

dealing with interests confined within a region.… [I]t

is also a means of safeguarding the national interest”).

25

But there is no basis for federal regulation of local

land use under the Clean Water Act for actions that

do not affect the navigability of a water way used to

transport goods in interstate commerce.

In short, there is as little need for federal regulation here as there is constitutional authority. That

federal officials in Washington, D.C., might weigh the

various police power concerns differently than the

people of Idaho provides no constitutional title for

them to do so, especially where, as here, the benefits

and costs on both sides of the health, safety and welfare equation are exclusively borne by the people of

Idaho. Our Constitution leaves such decisions to the

States for good reason. The inference-upon-inference

reasoning of the Corps and EPA should not be allowed

to alter that fundamental constitutional structure

26

CONCLUSION

The text of the Clean Water Act purports to regulate “navigable waters.” This was the understanding

of the agency at the time the statute was enacted.

Why then is the EPA insisting on regulating “wetlands” separated by a paved road from any surface water? What changed was not the text of the statute but

rather the agency’s interpretation. See SWANCC, 531

U.S. at 167-68. This Court’s deference to that interpretation violates separation of powers and allows

EPA to regulate beyond the enumerated powers of

Congress.

April, 2022

Respectfully submitted,

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

CONSTITUTIONAL COUNSEL

GROUP

174 W. Lincoln Ave., #620

Anaheim, CA 92805

(916) 601-1916

atcaso@ccg1776.com

Counsel for Amicus Curiae