Amicus Curiae Brief — Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers

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Supreme Court, U3.

_ EILED

(4) JUL 26 2909

No. 99-1178 | S650 08 Hi GLERS

In the

Supreme Court of the Anited States

SOLID WASTE AGENCY OF NORTHERN COOK COUNTY,

Petitioner,

v.

UNITED STATES ARMY CORPS OF ENGINEERS,

et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF AMICI CURIAE

THE CATO INSTITUTE AND

THE INSTITUTE FOR JUSTICE

IN SUPPORT OF THE PETITIONERS

*Theodore M. Cooperstein Roger Pilon

THEODORE M. COOPERSTEIN, P.C. Timothy Lynch

1815 Pennsylvania Avenue, N.W. Robert A. Levy

Suite 501 Ronald D. Rotunda

Washington, D.C. 20006 CATO INSTITUTE

(202) 331-7895 1000 Mass. Ave., N.W.

Washington, D.C. 20001

William H. Mellor (202) 842-0200

Clint Bolick

Scott G. Bullock

INSTITUTE FOR JUSTICE

1717 Pennsylvania Avenue, N.W. *Counsel of Record

Suite 200

Washington, D.C. 20006

(202) 955-1300

i

TABLE OF CONTENTS

Page

Table of Contents i

Table of Authorities li

Interest of Amici Curiae 1

FACTUAL SUMMARY 2

ARGUMENT 3

I. THERE ARE LIMITS TO THE

FEDERAL COMMERCE POWER. 3

Il. THE ASSERTION OF JURISDICTION

IN THIS CASE EXCEEDS THE LIMITS

ON THE FEDERAL INTERSTATE

COMMERCE POWER. 7

CONCLUSION 14

TABLE OF AUTHORITIES

Page

CASES

Adams v. Montana Power Co., 528 F.2d 437

(9th Cir. 1975) 10, 13

Baldwin v. Fish & Game Comm'n of Montana,

436 U.S. 371 (1978) 12

Cargill, Inc. v. United States, 516 U.S. 955

(1995) 13

Cooley v. Board of Wardens, 53 U.S. (12 How.)

299 (1851) i)

The Daniel Ball, 77 U.S. 557 (1870) 11

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

(1824) passim

Gibbs v. Babbitt, 214 F.3d 483 (4" Cir. 2000) 12

Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) 3

Heart of Atlanta Motel v. United States, 379 U.S.

241 (1964) 8

Hodel v. Virginia Surface Mining &

Reclamation Ass’n, 452 U.S. 264 (1981) 8, 10

Independent Ins. Agents of Am., Inc. v.

Hawke, 211 F.3d 638 (D.C. Cir. 2000) 12

TABLE OF AUTHORITIES

Page

License Tax Cases, 72 U.S. (5 Wall.) 462 (1866) 10

Maryland v. Wirtz, 392 U.S. 183 (1968) 12

McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316 (1819) 7

NLRB v. Jones & Laughlin Steel Corp., 301

U.S. 1 (1937) 7

Solid Waste Agency v. U.S. Army Corps of

Engrs, 191 F.3d 845 (7 Cir. 1999) 8, 10

United States v. Appalachian Elec. Power Co.,

311 U.S. 377 (1940) 10

United States v. Dewitt, 76 U.S. (9 Wall.) 41

(1869) )

United States v. Lopez, 514 U.S. 549 (1995) passim

United States v. Morrison, 120 S. Ct. 1740

(2000) passim

CONSTITUTION, STATUTES AND RULES

U.S. Const. art. I, § 1 4

U.S. Const. art. I, § 8 2, 4,6

iV

TABLE OF AUTHORITIES

Page

33 U.S.C. § 1362(7) 10

33 C.F.R. § 328.3(a)(3) 2

OTHER AUTHORITIES

“The Court Rediscovers Federalism: Is It the

Real Thing?” Policy Forum featuring Ronald D.

Rotunda and Lyle Denniston, Sept. 17, 1999 1

The Federalist No. 45 (James Madison) 3

R. Pilon, Restoring Constitutional Government,

Cato’s Letter No. 9, 1995 1

Reynolds, Kids, Guns and the Commerce Clause:

Is the Court Ready for Constitutional

Government? Cato Policy Analysis No. 216,

Oct. 10, 1994 1

Ronald D. Rotunda & John E. Nowak, Treatise

on Constitutional Law (3d ed. 1999) 3, 7

Laurence H. Tribe, American Constitutional

Law (3d ed. 2000) 3, 5, 11

l

INTEREST OF AMICI CURIAE!

The Cato Institute was established in 1977 as

a nonpartisan public policy research foundation

dedicated to advancing the principles of individual

liberty, free markets, and limited government.

Cato’s Center for Constitutional Studies was

established in 1989 to help restore the principles of

limited constitutional government, especially the

idea that the U.S. Constitution establishes a

government of delegated, enumerated, and thus

limited powers. Toward that end, the Institute and

the Center undertake a wide range of publications

and programs: e.g., Reynolds, Kids, Guns and the

Commerce Clause: Is the Court Ready for

Constitutional Government? Cato Policy Analysis No.

216, Oct. 10, 1994; R. Pilon, Restoring Constitutional

Government, Cato’s Letter No. 9, 1995; “The Court

Rediscovers Federalism: Is It the Real Thing?” Policy

Forum featuring Ronald D. Rotunda and Lyle

Denniston, Sept. 17, 1999. The instant case raises

squarely the question of the limits on Congress's

power under the doctrine of enumerated powers and

is thus of central interest to the Cato Institute and

its Center for Constitutional Studies.

' The parties have consented to the submission of

this brief. Their letters of consent have been filed

with the Clerk of this Court. Pursuant to Supreme

Court Rule 37.6, none of the parties authored this

brief in whole or in part and no one other than amici,

their members, or counsel contributed money or

services to the preparation or submission of this

brief.

2

The Institute for Justice is a nonprofit public

interest legal center committed to defending the

essential foundations of a free society through

securing greater protection for individual liberty and

restoring constitutional limits on the power of

government. Central to the mission of the Institute

is guaranteeing that Congress be limited to its

enumerated powers under Article I, Section Eight of

the United States Constitution.

FACTUAL SUMMARY

This case arises from the efforts of the Solid

Waste Agency of Northern Cook County (the

“Agency”), a public entity, to develop a site for “bale-

fill” waste disposal. The Agency purchased 500 acres

of land to establish a bale-fill after the Corps of

Engineers told the Agency that the Corps claimed no

jurisdiction over the land. Later, the Corps asserted

jurisdiction over isolated waters dispersed among 17

acres.

The Agency obtained all necessary county and

state approvals. However, the Corps of Engineers

denied the Agency a permit. That denial rested

upon the determination that certain migratory birds

might at some time alight upon open pools of water,

including “prairie potholes” as defined in 33 C.F.R. §

328.3(a)(3), known to form, from time to time, on the

property.

These potholes can be as small as 1/10 of an

acre in size (or less than the area of 1/10 of one

football field — from the goal line to the 10-yard line),

sometimes only two inches deep, seasonal

(depending on the rainfall), and connect to no other

3

waterway. These potholes appear and disappear,

and the exact same pothole may never reappear.

The waters in those potholes are not navigable and

not capable of becoming navigable by reasonable

effort. There is no evidence in the record before the

Court that any migratory birds actually ever used

these waters. Pet. for Cert. at 6 n.3.

The Corps of Engineers therefore asserted

that there was federal jurisdiction to bar use of the

land for the Agency’s purpose, based on the Clean

Water Act, the Corps’ regulations, and ultimately on

the Commerce Clause of the Constitution.

The Agency now petitions the Court to rule

that the Commerce Clause does not empower the

Congress to regulate the use of land like the

Agency’s intended parcel, located entirely intrastate,

with no existing connection to navigable waterways

or likelihood of becoming so connected, solely on the

basis of entirely speculative migratory bird landings,

when the federal government has not met its burden

to demonstrate any substantial relation to

“commerce among the states.”

ARGUMENT

I. THERE ARE LIMITS TO THE FEDERAL

COMMERCE POWER.

In deciding cases oof fundamental

constitutional interpretation, the Court “starts with

first principles,” chief among which is the principle

that the “Constitution creates a Federal Government

of enumerated powers.” United States v. Lopez, 514

U.S. 549, 552 (1995). Federalism and_ the

4

enumeration of federal powers were principles

“adopted by the Framers to ensure the protection of

our fundamental liberties.” Gregory v. Ashcroft, 501

U.S. 452, 458 (1991). Enumeration can serve that

function, however, only as long as the powers

enumerated are themselves understood as limited.

Should one or a few prove to be effectively unlimited,

enumeration becomes an empty promise.

This is a principle of longstanding, which

James Madison emphasized in Federalist No. 45:

“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.” The Federalist No. 45

(quoted in Lopez, 514 U.S. at 552). Scholarly

commentators agree with this principle. 1 Ronald D.

Rotunda & John E. Nowak, Treatise on

Constitutional Law § 3.3 at 346 (3d ed. 1999) (“It

must never be forgotten that the federal government

is one of enumerated powers and that it does not

possess a general police power.”); 1 Laurence H.

Tribe, American Constitutional Law § 5-1 at 789 (3d

ed. 2000) (“It is noteworthy that Article I, § 1 endows

Congress not with ‘all legislative power,’ but only

with the ‘legislative powers herein granted.”’).

That principle applies, of course, to the

Commerce Clause, found in Article I, Section 8,

giving Congress the power to regulate that portion of

commerce — that is, trade — that takes place with

foreign nations, among the several states, and with

the Indian tribes. U.S. Const. art. I, §8. “[T]he

enumeration of the particular classes of commerce to

which the power was to be extended, would not have

been made, had the intention been to extend the

5

power to every description.” Gibbons v. Ogden, 22

U.S. (9 Wheat.) 1, 194-95 (1824) (quoted in United

States v. Morrison, 120 S. Ct. 1740, 1753 n.7 (2000)).

As but one of the several powers delegated to

Congress, it must be understood in that context. In

particular, it cannot be understood in a way that

would render those other powers superfluous.

Morrison, 120 S. Ct. at 1754 n.8 (“the Constitution

cannot realistically be interpreted as granting the

Federal Government an _ unlimited license to

regulate.”); see also 1 L. Tribe, supra, § 5-2 at 795-96

(“the Constitution, in granting congressional power,

thus simultaneously limits it: an act of Congress is

invalid unless it is affirmatively authorized in the

Constitution.”) (emphasis original) (citing to Lopez,

514 U.S. 549).

The scope of the commerce power must

therefore be understood to have limits. All nine

justices of the present Court have agreed on this

much. Lopez, 514 U.S. at 556-57 (Rehnquist, C.J.)

(even the most expansive of the Court’s Commerce

Clause precedents confirm “that this power is subject

to outer limits.”); id. at 580 (Kennedy, J., concurring)

(Court has a “duty to recognize meaningful limits on

the commerce power of Congress.”); id. at 534

(Thomas, J., concurring) (“our cases are quite clear

that there are real limits to federal power”); id. at

615-16 (Breyer, J., dissenting, joined by Stevens,

Souter, and Ginsburg, JJ.) (recognizing the

“distinction of what is national and what is local,”

and the inability of the federal government to

regulate “marriage, divorce, and child custody,” or

any and all aspects of education).

6

A government that can regulate virtually

anything and everything is not a_ limited

government.

Indeed, if Congress could regulate

matters that substantially affect

interstate commerce, there would have

been no need to specify that Congress

can regulate international trade and

commerce with the Indians. ... Put

simply, much if not all of Art. I, § 8

(including portions of the Commerce

Clause itself) would be surplusage if

Congress had been given authority over

matters that substantially affect

interstate commerce. An interpretation

of cl. 3 that makes the rest of § 8

superfluous simply cannot be correct.

Lopez, 514 U.S. at 588-89 (Thomas, J., concurring);

see also United States v. Morrison, 120 S. Ct. 1740,

1759 (Thomas, J., concurring). The Court in

Morrison held that Congress cannot regulate

noneconomic activities (e.g., sexual assault) simply

because the activity, when aggregated, may have a

substantial effect on commerce. If someone trips and

falls, and thereby rips a hole in his trousers, that

does not mean that Congress may regulate every slip

and fall case in the United States simply because, if

one adds them all together, they affect tailoring

costs, and those costs affect commerce in the amount

of threads and needles that cross state lines. May

the federal government’ accordingly assert

environmental jurisdiction over every pothole in the

United States, simply because, after a rainfall, some

birds might use the potholes for drinking?

7

If the federal power to regulate interstate

commerce is to be limited to its stated ends, it cannot

reach matters that are not commerce, or commerce

that is not interstate. “The Constitution requires a

distinction between what is truly national and what

is truly local.” United States v. Morrison, 120 S. Ct.

at 1754; see also Lopez, 514 U.S. at 568; NLRB uv.

Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937);

cf. 1 Rotunda & Nowak, supra, § 4.9 at 459 (“Federal

regulation of single state activities that are not

commercial in character will not be upheld unless

the federal government can demonstrate to the

Court that there is a factual basis for the conclusion

that the single state activities, as a class, have a

substantial effect on interstate commerce.”). “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.” Gibbons,

22 U.S. (9 Wheat.) at 194-95.

Il. THE ASSERTION OF JURISDICITION IN

THIS CASE EXCEEDS THE LIMITS ON THE

FEDERAL INTERSTATE COMMERCE

POWER.

In McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316 (1819), Chief Justice John Marshall set forth the

Court’s clear duty upon review of a federal statute

challenged as exceeding Congress’s authority.

Should Congress, in the execution of its

powers, adopt measures which are

prohibited by the Constitution; or

should Congress, under the pretext of

executing its powers, pass laws for the

accomplishment of objects not entrusted

to the [federal] government; it would

become the painful duty of this

tribunal, should a case requiring such a

decision come before it, to say, that

such an act was not the law of the land.

17 U.S. at 423. Respondents justify the present

statute as an act to regulate interstate commerce.

But “simply because Congress may conclude that a

particular activity substantially affects interstate

commerce does not necessarily make it so.”

Morrison, 120 S. Ct. at 1752; Hodel v. Virginia

Surface Mining & Reclamation Ass'n, 452 U.S. 264,

310 (1981) (Rehnquist, J., concurring). “[W]hether

particular operations affect interstate commerce

sufficiently to come under the constitutional power

of Congress regulate them is ultimately a judicial

rather than a legislative question, and can be settled

finally only by this Court.” Heart of Atlanta Motel v.

United States, 379 U.S. 241, 273 (1964) (Black, J.,

concurring) (quoted in Lopez, 514 U.S. at 557 n.2).

The Court of Appeals below wrongly assumed the

Corps of Engineer’s assertion to be true, rather than

looking for factual support in the record and making

the necessary judicial determination. 191 F.3d at

849.

Chief Justice Marshall definitively wrote in

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189-90, 196

(1824), “Commerce ... is intercourse,” and the “power

to regulate” means “to prescribe the rule by which

commerce is to be governed.” In other words,

commerce entails the deliberate and purposeful

interaction of goods and people in trade, navigation,

9

communication and movement. See Cooley v. Board

of Wardens, 53 U.S. (12 How.) 299, 326 (1861)

(Daniel, J., concurring) (“The power delegated to

Congress by the Constitution relates properly to the

terms on which commercial engagements may be

prosecuted; the character of the articles which they

may embrace; the permission or terms according to

which they may be introduced”). Commerce is

human activity, not the independent migrations of

wild birds -- which are no more amenable to rules

and governance in crossing State lines than are

weather fronts and storms.

The power to regulate commerce also

necessarily encompasses the attendant means of

commerce, the instrumentalities, channels, or

avenues in which it takes place. It is this second

attendant category of commerce regulation that is

the purported basis for the Corps of Engineers to

assert jurisdiction over the Agency’s land. Yet none

of the parties contends that the Agency would

engage in a deliberate movement of people or goods

in commerce across state lines.

Without any relation to commerce among the

states, there is no basis for federal jurisdiction to

regulate the challenged activity. “[T]he express

grant of power to regulate commerce among the

States has always been understood as limited by its

terms; and as a virtual denial of any power to

interfere with the internal trade and business of the

separate States.” United States v. Dewitt, 76 U.S. (9

Wall.) 41, 44 (1869). “No interference by Congress

with the business of citizens transacted within a

State is warranted by the Constitution, except such

as is strictly incidental to the exercise of powers

10

clearly granted to the legislature.” License Tax

Cases, 72 U.S. (5 Wall.) 462, 470-71 (1866); Gibbons,

22 U.S. (9 Wheat.) at 194-95 (“It is not intended to

say that these words comprehend 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 ....”) (quoted in

Morrison, 120 S. Ct. at 1753 n.7).

In distinguishing the truly national from the

truly local, the Court is aware that “some activities

may be so private or so local in nature that they

simply may not be in commerce. Nor is it sufficient

that the person or activity reached have some nexus

with interstate commerce.” Hodel, 452 U.S. at 310

(emphasis original). The lower court, acknowledging

this distinction, agreed that the Agency should

prevail if “the protection of migratory bird habitat is

a matter of local concern only.” Solid Waste Agency

vu. U.S. Army Corps of Eng’rs, 191 F.3d 845, 851 (7%

Cir. 1999).

The present case concerns the assertion of

jurisdiction, under the Commerce Clause, by the

Army Corps of Engineers, which historically has

been charged with improving domestic, commercial

navigation. Consistent with its role to develop and

maintain the nation’s inland waterways, the Corps

of Engineers is granted jurisdiction over the

“navigable waters of the United States.” 33 U.S.C. §

1362(7); cf. United States v. Appalachian Elec. Power

Co., 311 U.S. 377 (1940) (cited in Adams v. Montana

Power Co., 528 F.2d 437, 440 (9t* Cir. 1975) (“The

commerce clause vests power in Congress to regulate

all waters navigable in interstate or foreign

1]

commerce.”)). But that jurisdiction cannot exceed the

limits of the Commerce Clause, and accordingly it

must be shown to concern actual and truly interstate

commerce in order to pass constitutional scrutiny.

Public navigable waters --

constitute navigable waters of the

United States within the meaning of

the acts of Congress, in

contradistinction from the navigable

waters of the States, when they form in

their ordinary condition by themselves,

or by uniting with other waters, a

continued highway over’ which

commerce is or may be carried on with

other States or foreign countries.

The Daniel Ball, 77 U.S. 557, 563 (1870) (emphasis

added).

Otherwise, “there is undoubtedly an internal

commerce which is subject to the control of the

States.” Id. The “waters” appearing on the Agency’s

land do not support transportation, nor do they

connect with other waterways, actual or potential.

These are in fact puddles and pools formed in

recesses of land once strip-mined and now reclaimed

to new use.

In Lopez, the Court drew a line barring

congressional regulation of local intrastate activity

that was not economic in itself. See 1 L. Tribe,

supra, § 5-4 at 819 (Court focused “on the nature of

the underlying activity — paying particular attention

to whether or not that activity could itself be

described as part of an economic enterprise”)

(emphasis original). It is difficult, if not impossible,

to see how the occasional or speculated alightings of

12

migratory birds in seasonal pools and puddles on

open land constitute “commerce.” Cf. Baldwin v.

Fish & Game Comm'n of Montana, 436 U.S. 371

(1978) (Blackmun, J.) (holding Privileges and

Immunities Clause “not isolated from the Commerce

Clause,” and challenged disparity in hunting license

fees for residents and nonresidents did not affect

commerce where “Elk hunting ... is a recreation and

a sport. ... It is not a means to the nonresident’s

livelihood. ... [and] The elk supply ... has been

entrusted to the care of the State by the people of

Montana.”).

The Commerce Clause does not justify

congressional use of “a relatively trivial impact on

commerce as an excuse for broad general regulation

of state or private activities.” Maryland v. Wirtz,

392 U.S. 183, 197 n.27 (1968) (Harlan, J.); Gibbs v.

Babbitt, 214 F.3d 483, 491 (4t» Cir. 2000) (“where a

federal statute has only a tenuous connection to

commerce and infringes on areas of traditional state

concern, the courts should not hesitate to exercise

their constitutional obligation to hold that the

statute exceeds an enumerated federal power”); cf.

Independent Ins. Agents of Am., Inc. v. Hawke, 211

F.3d 638 (D.C. Cir. 2000) (Sentelle, Cir. J.) (Potential

crop loss due to insects insufficient basis to justify

Comptroller of the Currency’s assertion of federal

power under national bank act).

Nothing about the subject Congress tried to

regulate in this case was truly commerce, nor was it

interstate. The isolation of the waters in question

from any connection to waterways or channels

capable or potentially capable of transport or travel

13

excludes them from the federal commerce power.

See Adams, 528 F.2d at 440 (“No purpose is served

by application of a uniform body of federal law, on

waters devoid of trade and commerce’).

2 This is not to say that Congress might not

act with regard to migratory birds on another

constitutional basis. See Cargill, Inc. v. United

States, 516 U.S. 955 (1995) (Thomas, J., dissenting

from denial of certiorari) (“I do not challenge

Congress's power to preserve migratory birds and

their habitat through legitimate means.”). Congress

has sufficient power, when there is an actual

problem that the States could not themselves

handle, or requires a uniform naiional solution (e.g.,

over-hunting and the elimination of animals that do

pass in interstate trade), to act when it has met its

burden of proof. But that is not this case.

14

CONCLUSION

The decision of the Court of Appeals should be

reversed. The Government has not met its burden of

proof in this case.

Respectfully submitted,

*Theodore M. Cooperstein Roger Pilon

THEODORE M. COOPERSTEIN, P.C. Timothy Lynch

1815 Pennsylvania Avenue, N.W. Robert A. Levy

Suite 501 Ronald D. Rotunda

Washington, D.C. 20006 CATO INSTITUTE

(202) 331-7895 1000 Mass. Ave., N.W.

Washington, D.C. 20001

William H. Mellor (202) 842-0200

Clint Bolick

Scott G. Bullock

INSTITUTE FOR JUSTICE

1717 Pennsylvania Avenue, N.W. *Counsel of Record

Suite 200

Washington, D.C. 20006

(202) 955-1300