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

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No. 99-1178 FILS

SEP 20 2000

IN THE

Supreme Court of the United 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 AMICI CURIAE OF ANTI-DEFAMATION LEAGUE,

‘PEOPLE FOR THE AMERICAN WAY FOUNDATION,*

IN SUPPORT OF RESPONDENTS

ELLIOT M. MINCBERG, Esq. MARTIN E. KARLINSKY, ESQ.

ALMA C. HENDERSON, Esq. (Counsel of Record)

PEOPLE FOR THE AMERICAN GILLY NADEL, Esq.

WAY FOUNDATION ROSENMAN & COLIN LLP

2000 M Street, N.W. 575 Madison Avenue

Washington ).C. 20036 New York, New York 10022

(202) 467-4999 (212) 940-8800

ELIZABETH M. COLEMAN, Esq.

STEVEN M. FREEMAN, Esq.

MICHAEL LIEBERMAN, Esq.

MICHAEL H. SAMPSON, Esq.

ANTI-DEFAMATION LEAGUE

823 United Nations Plaza

New York, New York 10017

(212) 490-2525

Attorneys for Amici Curiae

* additional Amici on inside cover

BEST AVAILABLE COPY

NATIONAL GAY AND LESBIAN TASK FORCE, NOW

LEGAL DEFENSE AND EDUCATION FUND, NATIONAL

~ CONFERENCE FOR COMMUNITY AND JUSTICE, HUMAN

RIGHTS CAMPAIGN, NATIONAL COALITION AGAINST

DOMESTIC VIOLENCE, NATIONAL FEDERATION OF

FILIPINO AMERICAN ASSOCIATIONS, INDIA ABROAD

CENTER FOR POLITICAL AWARENESS, NATIONAL

URBAN LEAGUE, NATIONAL COUNCIL OF JEWISH

WOMEN, NATIONAL WOMEN’S LAW CENTER, AND

AMERICAN ASSOCIATION OF UNIVERSITY WOMEN

BEST AVAILABLE COPY

TABLE OF CONTENTS

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IIIS TIE ITT incsscandinnsnesnnsesssnenncvenesececesensdnesees

Anti-Defamation League ..................ccccceceeeeeeeeees

People for the American Way Foundation...........

National Gay and Lesbian Task Force................

NOW Legal Defense and Education Fund...........

National Conference for

Community and Justice....................ccccceceeeees

Human Rights Campaign.....................:.ccccceeeeees

National Coalition Against

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National Federation of Filipino

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India Abroad Center

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National Urban League ..........cccccscscsiscscsccccscsceees

National Council of Jewish Women....................

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National Women’s Law Center ....................0.c008 's D. Rejecting the Cumulative

Impact Doctrine and the Laws It

American Association of University Women........ 8 Supports Would Undermine the

° Settled Expectations of

TIES LALIT TE OE SF 10 the People of our Nation ..................::cccceceeeeees 26

SUMMARY OF ARGUMENT...................cccccccceccceeees 12

| IEEE SAE SC SOU eS Re 30

ARGUMENT |

THE AGGREGATION PRINCIPLE IS A |

FUNDAMENTAL AND WELL-

GROUNDED CONSTITUTIONAL

DOCTRINE THAT SHOULD

BE RETAINED BY THIS COURT ..............0000-+- 14 '

A. The Cumulative Impact Test is

Firmly Rooted in Our Nation’s

Economic Life and Well Settled in its

IES HD cccncnastinscscncssecsusiccemesicinn 14

B. The Cumulative Impact

Test Strongly Enforces the Important

Federal Interest in Uniform

Civil Righats Protections ..............ccccscccccsessoseses 19

C. The Case Before the Court

Demonstrates Appropriate

Circumstances in Which to

Apply the Aggregation Principle...................... 22

iv

TABLE OF AUTHORITIES

FEDERAL CASES

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

CE. Gare Ge cccescccccnccesccencansnsceseceusesccsseces 15

Allied-Bruce Terminix Cos. v. Dobson,

chek |) ae 18, 27

Carter v. Carter Coal Co.,

Se TI, BI Ge cscccccccccceccsenceveccscccnensesseesnes 15

City of Burbank v. Lockheed Air Terminal, Inc.,

aS See 24

Gibbons v. Ogden,

22 U.S. (9 Wheat) 1 (1824) .............ccceeeeeees 14, 15

Hammer v. ,

CO O_ 23

Heart of Atlanta Motel, Inc. v. United States,

BTID UB. BOE (BBB .ccccccccsccccccccscccess 19, 20, 21, 25

Hodel v. Virginia Surface Mining

and Reclamation Ass’n,

GED UBD. BIS Gi ei cccccceccccecceccsccscesesccscessees 18, 25

Jones v. United States,

SED G, GR, FO GE wovecscccccncscncssnsccsessvsccmrsees 24

Katzenbach v. McClung,

Se 19, 21, 25

McCulloch v. Maryland,

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

— ELE SO GS OP PA OCI PE

NLRB v. Jones & Laughlin Steel Corp.,

ee SEE. Bt Gee iccnicnntianntncnsceictecsnonsdidinoteni 15, 16

North American Co. v. SEC,

gE eae nena an EI 24

Perez v. United States,

EES ce nea Aa Re 18

Planned Parenthood of Southeastern

Pennsylvania v. Casey,

Be ey CEI -sncitnniennscuicncmentioddccass 26, 27, 28

Solid Waste Agency of Northern Cook County

v. United States Army Corps of Engineers,

191 F.3d 845 (7th Cir. 1999)...00000. oa. 10, 11

United States v. Darby,

i set iitaica ari h caeni led 16, 17

United States v. Lopez, |

ee WS IED scccscccsecccsssccscnccsnseess 18, 24, 27

United States v. Morrison,

Be BOE OIE cctecccescuccsoussosesosonccses 17, 23

United States v. Women’s Sportswear Mfg. Ass’n,

IED ceriniicinintcntacnnentatemsmmmeundeten 20

United States v. Wrightwood Dairy Co.,

NEE ena eD 18

Wickard v. Filburn,

gk SERS em 16, 17

FEDERAL STATUTES AND CONSTITUTIONS

vi

U.S. Constitution Art. 1, § 8 .........cccccececeeeeeeneneeeees - 17

Civil Rights Act of 1964, |

42 U.S.C. § 2000 ef SOG... .ccccccceceeeeeeeeeneneees passim

Clean Water Act, 33 U.S.C. § 1251 et seq. ............. 10

Local Law Enforcement Enhancement

aR GE BID veocccccscccnccosonecesosncvesescoscccesosccsovvesossscses g

Violence Against Women Act,

108 Stat. §§ 1902-19420... cccceceeeeeeeeeeeeees 4,9

MISCELLANEOUS

L. Tribe, AMERICAN CONSTITUTIONAL

LAW 6B6 CB. FOOD) nncocecteccccccccccscccccccscescevescsecees 17

No. 99-1178

IN THE

SUPREME COURT OF THE UNITED STATES

SOLID WASTE AGENCY OF

NORTHERN COOK COUNTY,

Petitioner,

vs.

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 AMICI CURIAE OF ANTI-DEFAMATION

LEAGUE, PEOPLE FOR THE AMERICAN WAY

FOUNDATION, NATIONAL GAY AND LESBIAN TASK

FORCE, NOW LEGAL DEFENSE AND EDUCATION

FUND, NATIONAL CONFERENCE FOR COMMUNITY

AND JUSTICE, HUMAN RIGHTS CAMPAIGN,

NATIONAL COALITION AGAINST DOMESTIC

VIOLENCE, NATIONAL FEDERATION OF FILIPINO

AMERICAN ASSOCIATIONS, INDIA ABROAD

CENTER FOR POLITICAL AWARENESS, NATIONAL

URBAN LEAGUE, NATIONAL COUNCIL OF JEWISH

WOMEN, NATIONAL WOMEN’S LAW CENTER, AND

AMERICAN ASSOCIATION OF UNIVERSITY WOMEN

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI

The Anti-Defamation League, People for the

American Way Foundation, National Gay and Lesbian

Task Force, NOW Legal Defense and Education Fund,

National Conference for Community and Justice, Human

Rights Campaign, National Coalition Against Domestic

Violence, National Federation of Filipino American

Associations, India Abroad Center for Political

Awareness, National Urban League, National Council of

Jewish Women, National Women’s Law Center, and

American Association of University Women submit this

brief as amici curiae in support of respondents. !

Anti-Defamation League

The Anti-Defamation League (“ADL”) was founded

in 1913 to advance good will and mutual understanding

among Americans of all creeds and races, and to secure

justice and fair treatment to all citizens alike. It has long

been ADL’s critical mission to combat all types of

prejudice, discriminatory treatment, and hate. ADL has

supported the enactment by Congress and the vigorous

enforcement by the Executive Branch of our country’s

principal federal civil rights laws, and has consistently

made its voice heard in the courts as an advocacy

organization fighting to guarantee equal treatment of all

persons. In particular, ADL has filed amicus briefs in

| Pursuant to Rule 37.3(a) of the Rules of this Court, amici have

obtained and lodge herewith the written consents of the parties to the

submission of this brief. Pursuant to Rule 37.6 of the Rules of this

Court, amici state that no counsel for a party authored this brief in

whole or in part, and that no person, other than amici, their

members, and their counsel, made a monetary contribution to the

preparation or submission of this brief.

this Court in mumerous cases urging. the

unconstitutionality or illegality of discriminatory

practices or laws, or defending government enactments

designed to prevent or punish discrimination and hate.

These include many of the Court’s landmark cases in the

area of civil rights and equal protection, as well as

several cases addressing Commerce Clause issues in

connection with civil rights enactments.?

People for the American Way Foundation

People For is a non-partisan, education-oriented

citizens’ organization established to promote and protect

civil and constitutional rights. Founded in 1980 by a

group of religious, civic, and educational leaders devoted

to our nation’s heritage of tolerance, pluralism, and

liberty, People For now has over 300,000 members

nationwide. People For has been actively involved in

supporting the enactment of civil rights legislation,

participating in civil rights litigation, and conducting

programs and studies directed at reducing problems of

bias and discrimination. People For has frequently

submitted amicus briefs in this Court in support of civil

rights legislation and of court decisions invalidating

discriminatory laws and practices.

2 See, e.g., ADL briefs amicus cunae filed in Shelley v. Kraemer, 334

U.S. 1 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); Brown v. Board

of Educ., 347 U.S. 483 (1954); Jones v. Alfred H. Mayer Co., 392 U.S.

409 (1968); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969);

Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972); San Antonio Indep.

School Dist. v. Rodriguez, 411 U.S. 1 (1973); Runyon v. McCrary, 427

U.S. 160 (1976); Hishon v. King & Spalding, 467 U.S. 69 (1984); Miller

v. Johnson, 515 U.S. 900 (1995); Romer v. Evans, 517 U.S. 620

(1995); United States v. Morrison, 120 S.Ct.. 1740 (2000); and Univ.

of Alabama v. Garrrett, No. 99-1240 (pending) (2000).

National Gay and Lesbian Task Force

Founded in 1973, the National Gay and Lesbian

Task Force (“NGLTF”) works to eliminate prejudice,

violence, and injustice against gay, lesbian, bisexual, and

transgendered people, at the local, state, and national

levels. As part of a broader social justice movement for

freedom, justice, and equality, NGLTF seeks to create a

world that respects and celebrates the diversity of human

expression and identify where all people may fully

participate in society.

NOW Legal Defense and Education Fund

NOW Legal Defense and Education Fund (“NOW

Legal Defense”) is a leading national non-profit civil

rights organization that has used the power of the law to

define and defend women’s rights for thirty years. NOW

Legal Defense engages on many fronts to eliminate

gender-motivated violence and to ensure uniform

enforcement of civil rights nationwide. NOW Legal

Defense chairs the national task force that was

instrumental in passing the historic 1994 Violence

Against Women Act (“VAWA”), and represented Christy

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

(2000). In addition, NOW Legal Defense has appeared in

numerous other cases seeking to enforce federal civil

rights laws?, and supporting the rights of women who

3 See, e.g., Harris v. Forklift Sys. Inc., 510 U.S. 17 (1993); Landgraf

v. USI Film Prods., 511 U.S. 244 (1994); Oncale v. Sundowner

Offshore Services, 523 U.S. 75 (1998); Burlington Industnes, Inc. v.

Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S.

775 (1998); and Univ. of Alabama v. Garrett, No. 99-1240 (pending)

(2000).

have been the victims of domestic and other gender-

motivated violence.

National Conference for Community and Justice

Founded in 1927 as the National Conference for

Christians and Jews, the National Conference for

Community and Justice (“NCCJ”) is a human relations

organization dedicated to fighting bias, bigotry, and

racism in America. NCCJ promotes understanding and

respect among all races, religions, and cultures through

advocacy, conflict resolution, and education. It is

uniquely positioned to enhance community leadership

development programs in its service area with 65 offices

in 35 states and the District of Columbia, and has

dedicated itself to transforming communities to provide

fuller opportunity and to be inclusive and just through

institutional change and by empowering leaders.

Human Rights Campaign

The Human Rights Campaign (“HRC”) is the

nation’s largest gay and lesbian civil rights organization,

with over 360,000 members nationwide. HRC is devoted

to fighting and ending discrimination on the basis of

sexual orientation, and to protecting the basic civil and

human rights of gay, lesbian, and bisexual Americans. To

this end, HRC has provided federal and state legislative,

regulatory, and judicial advocacy, media, and grass roots

support on a range of initiatives affecting gay, lesbian

and bisexual individuals who suffer discrimination on the

basis of their sexual orientation, including the

Employment Non-Discrimination Act.

* United States v. Lanier, 520 U.S. 259 (1997).

National Coalition Against Domestic Violence

Founded in 1978, the National Coalition Against

Domestic Violence (“NCADV”) is a grassroots organization

representing a national network of over 2,000 local

programs and state coalitions that serve battered women

and their children. NCADV serves as a national

information and referral center for the general public, the

media, battered women and their children, public and

private agencies, and organizations. NCADV maintains

a public policy office in Washington, D.C. in order to

influence federal legislation that relates to violence

against women, including domestic violence, sexual

assault, and stalking. NCADV provides information and

technical assistance, and promotes the development of

innovative model programs which address the special

needs of battered women and battered women’s

programs. NCADV is especially committed to ending

misconceptions about violence against women and victim

blaming as well as promoting public awareness about the

nature of crimes against women.

National Federation of Filipino

American Associations

The National Federation of Filipino American

Associations (“NaFFAA”) was formed in 1997 to promote

the interests of Filipinos and Filipino Americans so that

they can become active participants and leaders in all

aspects of U.S. society. It is NaFFAA’s mission to

promote community empowerment through civic

participation in the U.S. political process. Essential to

this mission is advocacy for civil rights, equity, social

justice, and equal treatment of all persons. NaFFAA has

led the struggle of Filipino World War II Veterans who

have been denied their benefits due in large part to

institutional racism. NaFFAA has also collaborated with

——

other national civil rights organizations to fight hate

crimes, racial profiling, and anti-Asian violence. NaFFAA

is proud to be part of a broader social justice movement

for freedom, justice, and equality, and believes deeply

that diversity is the foundation of America’s strength.

India Abroad Center for Political Awareness

The India Abroad Center for Political Awareness

(“IACPA”) was founded in 1994 to help increase political

awareness in the Asian Indian American community.

IACPA is a national, nonpartisan, nonprofit agency

dedicated to fighting for hate crimes legislation, for fair

treatment for immigrant communities, and for increased

participation by Indian Americans in our democracy.

National Urban League

The National Urban League, under the leadership

of Hugh B. Price, has sought to emphasize greater

reliance on the unique resources and strengths of the

African-American community to find solutions to its own

problems. The League’s approach has been to utilize the

tools of advocacy, research, program service, and

systems change. The result has been an organization

with strong community roots focused on the social and

educational development of youth, economic self-

sufficiency, and racial inclusion. The League, through its

affiliate system, serves more than 2 million individuals

each year. The League views with concern any potential

abridgement of the scope of the federal Commerce

Clause.

National Council of Jewish Women

The National Council of Jewish Women (“NCJW”)

is a volunteer organization, inspired by Jewish values,

that works through a program of research, education,

advocacy, and community service to improve quality of

life for women, children, and families, and strives to

ensure individual rights and freedoms for all. Founded

in 1893, NCJUW has 90,000 members in over 500

communities nationwide. NCJW joins this brief in view

of its historical commitment to civil rights and its active

involvement in passage of our nation’s civil rights laws.

National Women’s Law Center

The National Women’s Law Center (“NWLC”) is a

non-profit legal advocacy organization dedicated to the

advancement and protection of women’s rights and the

corresponding elimination of sex discrimination from all

facets of American life. Since 1972, NWLC has worked to

secure equal opportunity for women in education, the

workplace, and other settings, including through

litigation of cases brought under federal anti-

discrimination laws. NWLC has a deep and abiding

interest in ensuring that these laws are fully

implemented and enforced.

American Association Of University Women

For over a century, the American Association of

University Women (“AAUW”), an organization of 150,000

members, has been a catalyst for the advancement of

women and their transformation of Ameiican society. In

more than 1,500 communities across the country, AAUW

members work to promote education and equity for all

women and girls, lifelong learning, and positive societal

change. AAUW plays a major role in activating advocates

nationwide on AAUW’s priority issues, including: gender

equity in education; reproductive choice; social security;

and workplace and civil rights issues. AAUW supports

constitutional protection and enforcement of civil rights

for all individuals, and opposes all forms of

discrimination.

As leading civil rights organizations, the amici

have a keen interest in the use by Congress of the

Commerce Clause power to enact and enforce civil and

human rights protections. Amici have consistently

supported federal jurisdiction over activities, whether

they may be characterized primarily as commercial or

non-commercial, that are inimical to the fundamental

human rights of our people. From the seminal Civil

Rights Act of 1964, 42 U.S.C. § 2000 et seg., to VAWA

(108 Stat. §§ 1902-1942), to the pending federal hate

crimes legislation [Local Law Enforcement Enhancement

Act of 2000], amici have supported national efforts

precisely because local efforts have been absent or

ineffective, or because a concerted national effort was

plainly required to eradicate long-tolerated practices that

\ ad persisted over decades despite their illegality.

The case before the Court today does not directly

concern a civil rights law. But its resolution — should

the Court abandon the “cumulative impact” or

“aggregation” principle that historically has been used to

evaluate exercises of the Commerce Clause power — may

cast serious doubt on the previously well-accepted

foundations of some of the central civil rights laws of our

time. Amici therefore appear in this case to demonstrate

that the aggregation principle is a well-founded rule

whose application is of great utility in determining

10

whether Congress has acted consistently with the powers

conferred on it by the Constitution — as it has here

indisputably done. Amici also appear to point out that

the civil rights protections supported by the aggregation

principle not .miy are part of our settled expectations as

a society, bui also have been prime movers in the

evolution of the freest nation in the world, whose

fundamental social liberties have been in part

responsible for its emergence as a dominant world power.

The articulation and maintenance of the enumerated

powers of Congress, as well as the balance between local

and central power, have been well served by the

constitutional regime that the Court reexamines in this

case. In disregarding that regime, the Court would act at

the peril of settled expectations as to our nation’s civil

and human rights.

STATEMENT

1. This case concerns the failure by petitioner to

secure a landfill or balefill permit from the U.S. Army

Corps of Engineers in order to comply with the Clean

Water Act, 33 U.S.C. § 1251 et seg. The Corps claims

jurisdiction to require petitioner to secure such a fill

permit in order to fill over 17 acres of lakes and ponds

that are neither interstate in character nor have a

connection to interstate or navigable waters. In so

insisting, the Corps relies on the “migratory bird” rule.

The rule permits it to exercise jurisdiction over such

waters because of their actual or potential use as habitat

for migratory birds, and the resulting substantial effects

on interstate commerce that destruction of migratory

bird habitat might have.

2. The parties concede, and the Seventh Circuit

found, “that the waters of [the landfill] site were a habitat

for migratory birds.” Solid Waste Agency of Northern

11

Cook County v. United States Army Corps of Engineers,

191 F.3d 845 (7" Cir. 1999). The circuit court further

found that “the destruction of migratory bird habitat and

the attendant decrease in the population of these birds

‘substantially’ affects interstate commerce.” Solid Waste

Agency of Northern Cook County, 191 F.3d at 850. The

activities of observing, hunting, and trapping migratory

birds are a not insubstantial component of the national

economy, entailing the expenditure of billions of dollars

each year, and travel across state lines.

3. While mindful that the Corps of Engineers’

actions prohibiting the filling of ponds that serve as

migratory bird habitat could be seen as a purely local

regulation, the circuit court was equally clear that proper

implementation of the Commerce Clause power requires

Congress to consider the “aggregate effect” of individual

or local actions in order to assess whether, overall, such

actions have a “substantial effect” on interstate

commerce. “The effect may not be observable as each

isolated pond used by the birds for feeding, nesting, and

breeding is filled, but the aggregate effect is clear, and

that is all the Commerce Clause requires.” Solid Waste

Agency of Northern Cook County, 191 F.3d at 850.

4. The Court granted certiorari to consider two

questions. First, whether the Corps of Engineers,

consistent with the language and intent of the Clean

Water Act, may assert jurisdiction over isolated intrastate

waters because they serve as habitat of migratory birds.

Second, whether the exercise of such jurisdiction is

within the power conferred on Congress by the

Commerce Clause. Put differently, the question is

whether, by reason of the conceded aggregate substantial

effect on the national economy of the destruction of

12

migratory bird habitat, our central government may

invoke its commerce power.>

SUMMARY OF ARGUMENT

1. The exercise of federal power at issue here is

in all respects consistent with the Commerce Clause and

with this Court’s. settled Commerce Clause

jurisprudence. National power extends to activities that,

although local in nature, may in the aggregate have a

substantial impact on the nation’s and our people’s

economic life. The aggregation principle is a well settled

precept that elucidates the circumstances in which the

exercise of national legislative power is warranted.

2. The boundaries of the commerce power have

been developed and articulated by this Court over almost

two centuries of case law and social and economic

development. The exercise of that power here must be

analyzed within the context of the pragmatic test first

articulated by Gibbons v. Ogden, and elaborated in the

cases that have enunciated the substantial effects test

and the aggregation principle in the modern era. When

viewed within that setting, this exercise of federal power

— as well as that exercise which underlies adoption of

numerous civil rights protections — is undoubtedly

consistent with the commerce clause.

3. The aggregation principle has served as the

cornerstone of the federal power underlying some of this

5 Amici take no position on the first question, as they have no

interest, other than a general, undifferentiated one, in the

enforcement of our country’s environmental laws. As to the second

question, however, amici have a sharp and specific interest in the use

of the cumulative impact or aggregation principle to sustain

Congress’s civil and human rights enactments.

13

nation’s most important civil rights enactments. In the

civil rights context, the cumulative effect or aggregation

principle has in this Court’s view provided the support

for the Civil Rights Act of 1964, and for other laws that

protect the access of protected groups to the national

economic life, and as such are within the paradigm of

federal power.

4. As a long-standing pillar of the commerce

power, the aggregation principle is part of the settled

expectations of our people and our nation. Likewise, the

laws it supports are a part of those settled expectations.

The rule of stare decisis is an important one. No

departure from it is warranted in the circumstances of

this case.

14

ARGUMENT

THE AGGREGATION PRINCIPLE IS

A FUNDAMENTAL AND WELL-GROUNDED

CONSTITUTIONAL DOCTRINE THAT

SHOULD BE RETAINED BY THIS COURT

Drawing upon the touchstone of Gibbons uv.

Ogden, 22 U.S. (9 Wheat) 1 (1824), the cumulative

impact principle is essential to the judicial consideration

of whether Congress may regulate the web of interstate

dealings that constitute and permeate our national

economy. The principle is based on the recognition that

use of the commerce power reflects the economic

interrelatedness of our people and our nation, as well as

the federal government’s special competence in dealing

with problems of national scope. The requirements of

federalism are important, as is the teaching that

enumerated and divided powers are designed to protect

and preserve our peoples’ liberties. But when those

precepts are used as talismans to undermine a federal

power that properly protects our environment, our civil

rights, or other areas of federal concern, we risk exalting

concept over reality.

A. The Cumulative Impact Test is Firmly Rooted in

Our Nation’s Economic Life and Well Settled in its

Constitutional History.

Article I, § 8 of the United States Constitution

gives Congress the authority to “regulate Commerce ~~

among the several States.” U.S. Constitution Art. I, § 8.

In Gibbons, Chief Justice Marshall enunciated the view

that congressional power over “commercial intercourse”

extended to all commercial activity having any interstate

component, aspect, or impact, however indirect, and that

i = ;

15

Congress’s commerce power is “plenary,” absolute within

the sphere of legislation with respect to all “commerce

which concerns more states than one.” Id. at 194.

Under this view, the sole constraint on the commerce

power is the democratic process itself. “The wisdom and

the discretion of Congress, their identity with the people,

and the influence which their constituents possess at

elections, are, in this, as in many other instances, .. .

the sole restraints... on its abuse.” Jd. at 197.

Notwithstanding the clear mandate of Gibbons,

the Court retreated from this expansive view and during

the period 1887 through 1937 sought to deny Congress

the power to deal with uniquely national problems. The

Court ignored “the single, national market still emergent

in our own era.” United States v. Lopez, 514 U.S. 549,

568 (1995) (Kennedy, J., concurring). At the same time,

the Court engaged in an artificial hermeneutics of the

term “commerce” that sought to justify a narrow and

confined reading of national power. E.g., Carter v. Carter

Coal Co., 298 U.S. 238 (1936) (distinguishing between

commerce and production). The retreat from Chief

Justice Marshall’s view culminated in a series of

decisions that struck down Congress’s efforts to deal with

the worst economic depression this nation had ever

suffered. See, e.g., A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935). See Lopez, 514 U.S.

at 571-72 (Kennedy, J., concurring).

Following the close of that now-outmoded

jurisprudential era, however, the Court resoundingly

rejected its former fragmented view of the Commerce

Clause power, and reaffirmed the pragmatic rule first

enunciated by Chief Justice Marshall in Gibbons. Thus,

beginning with the landmark decision in NLRB v. Jones

& Laughlin Steel Corp., 301 U.S. 1 (1937), the Court

began to develop a modern view of the commerce power,

16

in keeping with a truly national economy. The Court

there held that Congress could regulate labor relations at

an integrated manufacturing and interstate sales

enterprise because labor unrest and work stoppages at

such a business “would have a most serious effect upon

interstate commerce.” Id. at 41, 42.

Following Jones & Laughlin, the Court developed

the pragmatic “substantial effects” test, which focused on

the “effect” on interstate commerce of a regulated

activity. At the same time, it rejected the ritualistic

search for whether an activity was in the current of

commerce. In United States v. Darby, 312 U.S. 100

(1941), for example, the Court approved federal

regulation of wages and hours of workers because

effectuation of the Commerce Clause power conferred on

Congress the power to protect the national economy.

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

Court further reaffirmed the plenary scope of Congress’s

power to regulate activities that substantially affect

commerce by enunciating the “aggregation” or

“cumulative effect” principle. Jd. at 129. In that case,

the Court held that Congress could regulate a farmer’s

production of wheat for home consumption, because the

cumulative effect of such consumption might alter the

supply-and-demand relationships of an interstate

market. The Court approved the regulation of a specific

intrastate activity that “may be trivial by itself,” because

the effect on interstate commerce of that activity, “taken

together with that of many others similarly situated, is

far from trivial.” Id. at 127-28.

In both Darby and Wickard, the Court looked not

only to the Commerce Clause but also to the Necessary

and Proper Clause, as it was explicated by the Court in

McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819).

17

The Necessary and Proper Clause augments the

Commerce Clause, and gives Congress the broad

prerogative to determine the means by which it will

effectuate its policy regarding interstate commerce. Id.

at 420-21.6

The power of Congress over interstate

commerce is not confined to the regulation

of commerce among the states. It extends

to those activities intrastate which so affect

interstate commerce or the exercise of the

power of Congress over it as to make

regulation of them appropriate means to

the attainment of a legitimate end, the

exercise of the granted power of Congress

to regulate interstate commerce.

Darby, 312 U.S. at 118. The Necessary and Proper

Clause permits Congress to regulate in areas not strictly

within the enumerated powers of Article I, Section 8 if

necessary to carry out an enumerated power.

Recognizing the nature and extent of the Necessary and

Proper Clause “made the mechanical application of legal

formulas no longer feasible.” Wickard, 317 U.S. at 124.

© Because it is well settled that Congress has the power to protect

what is in all senses a national economy, laws that protect entry into

and full participation in that economy express the exercise of powers

ancillary to an enumerated power. Such laws are “constitutionally

valid, so long as the ancillary power neither conflicts with external

limitations, such as those of the Bill of Rights and of federalism, nor

renders Congress’ powers limitless.” L. TRIBE, AMERICAN CONSTITUTIONAL

LAW § 5-3 at 798 (3d ed. 2000). The federal civil rights laws are

consistent with a principled distinction between federal and state

power, and do not signal unlimited federal power.

18

The Court’s most recent cases examining

Congress’s power under the Commerce Clause confirm

that Congress may regulate local activities, when

necessary to protect the national economy, because of

their effects beyond state borders.’ See United States v.

Morrison, 120 S.Ct. 1740 (2000) (finding no interstate

effect of gender-motivated violence); United States uv.

Lopez, 514 U.S. 549, 559 (1995) (finding no sufficient

interstate commerce effect from firearms possession near

schools). As stated in Morrison, the Court will sustain “a

wide variety of congressional Acts regulating intrastate

economic activity where [the Court] conclude(s] that the

activity substantially affect[s] interstate commerce.”

Morrison, 120 S.Ct. at 1750 (quoting Lopez).®

Using cumulative impact principle to determine

substantial effect is a settled rule of constitutional

7 See, e.g., Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995)

(enforcing Federal Arbitration Act in state court suit involving home

purchase); Hodel v. Virginia Surface Mining and Reclamation Ass’n.,

452 U.S. 264 (1981) (local erosion standards in surface mining);

Perez v. United States, 402 U.S. 146 (1971) (local criminal activity);

United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942) (intrastate

marketing of milk). The amicus briefs filed by the Center for

Individual Rights and others simply omit the history of Commerce

Clause jurisprudence between Gibbons and Lopez. That they do so

is not surprising, because in light of this history it would be difficult

to argue, as they do, that Congress seeks to “bootstrap” or “extend”

the commerce power beyond “commercial” activities. To the contrary,

as the last half-century of case law demonstrates, it is petitioner and

its amici that seek to truncate congressional power as currently

recognized in this Court’s jurisprudence.

8 Wickard retains its constitutional vitality today. Yet precisely

because it demonstrates how far the commerce power may

constitutionally reach, it also discloses the weakness in an analysis

that does not take into account the aggregate effects of individual

acts. Growing wheat for home use has no effect on interstate

commerce, except in the aggregate.

19

adjudication that should not be rejected or weakened.

The Court today would disregard this principle at the

peril of upsetting an analytic structure that has served

both the Court and the nation well in ascertaining the

bounds of congressional power.

B. The Cumulative Impact Test Strongly Enforces the

Important Federal Interest in Uniform Civil Rights

Protections.

. Among the laws that have become so interwoven

in the fabric of our national life as to make that life

inconceivable (or certainly undesirable) without them are

the seminal civil rights laws of the 1960s. The

cumulative impact or aggregation principle first

enunciated by this Court in Wickard provides the

constitutional cornerstone of those laws. In the first

cases to consider the constitutionality of the Civil Rights

Act of 1964, 42 U.S.C. § 2000 et seg., the Court upheld

a prohibition on racial discrimination at, respectively, a

local motel and a local restaurant. Heart of Atlanta Motel,

Inc. v. United States, 379 U.S. 241 (1964), and Katzenbach

v. McClung, 379 U.S. 294 (1964). Despite the purely local

nature of these businesses, the Court emphasized the

aggregate effect that racial discrimination in such

activities would have on interstate commerce. The Court

pointed to potential inhibition of interstate sale of goods,

obstructions to interstate travel, and obstacles to the

establishment of new business enterprises, all plainly

evils that Congress sought to address in enacting this

legislation. Katzenbach v. McClung, 379 U.S. 294 (1964).9

. That the aggregation principle is critical to the holding of the Court

in Heart of Atlanta is made abundantly clear by Justice Black’s

concurrence. See Heart of Atlanta Motel, Inc. v. United States, 379

U.S. at 268-79 (Black, J., concurring).

20

In responding to the objection, lodged in Heart of

Atlanta, that the “operation of the motel here is of a

purely local character,” the Court quoted from United

States v. Women’s Sportswear Mfg. Ass’n, 336 U.S. 460,

464 (1949): “If it is interstate commerce that feels the

pinch, it does not matter how local the operation which

applies the squeeze.” Heart of Atlanta, 379 U.S. at 258.

Reaffirming both the substantial effects test and the

aggregation principle of Wickard, the Court looked to the

aggregate impact that local activities might have on

national commerce. !°

In the civil rights arena, the “cumulative impact”

or “aggregate effects” principle gives due and proper

weight to the effect of discriminatory activities on the

national economic life of this country and its peoples,

even in such local, non-commercial activities as

education, voting, and protection from _ violence.

Discrimination in the classroom, the housing markets,

and the work force objectively deters individuals from full

participation in the national economy. Less obviously,

the experience of being denied access to schools or of

being the object of hate-based violence subjectively

impedes people’s ability to work, to employ others, to

invest and to consume. The primary purpose of civil

10 The Court in Heart of Atlanta was equally clear as to the propriety

of use of the commerce power even though the conduct forbidden,

exclusion of persons from accommodation on the ground of race,

could not fairly be characterized as “commercial.” Indeed,

“discrimination” can be viewed as “commercial” activity only if one

examines its effects — limiting participation in or wholly excluding

the object of discrimination from the national commercial life.

“Discrimination” in itself is the archetype of a purely private, local,

non-commercial activity — bias or hate directed at another because

he or she is different, and the consequent decision not to admit that

other to activities or associations generally deemed desirable.

21

rights protections “is the vindication of human dignity

and not mere economics,” yet regardless of their purpose

Congress has unquestionable authority under the

Commerce Clause to enact them because they

substantially affect interstate commerce. Heart of

Atlanta, 379 U.S. at 291-93 (Goldberg, J., concurring).

As used by this Court in Katzenbach v. McClung

and Heart of Atlanta, the cumulative impact principle

appropriately secures entry into, and full participation in,

the national economy for all Americans. Stated

otherwise, the principle serves to protect the economic

life of this country for all its citizens, and is thus

undoubtedly within the plenary commerce power. In the

last analysis, the aggregation precept is nothing more

than a refinement of the bedrock principle that this

Court reaffirmed once again in Morrison and Lopez. that

Congress has the power to regulate intrastate economic

activity when the activity substantially affects interstate

commerce. Morrison, 120 S.Ct. at 1750.!!

Amici are not unmindful that the commerce power

is limited, and that Congress, however salutary its

purpose, may not reach purely local activities with purely

local effects. But if this country’s recent civil rights laws

were to be challenged on the theory, similar to that

'! Of course, neither the Civil Rights Act of 1964 nor the holdings of

Heart of Atlanta and Katzenbach are before the Court today, and the

interstate component of the 1964 Act may protect it from future

challenge. However, if the Court repudiates the aggregation principle,

civil rights enactments may nonetheless be subject to the same

attack as the environmental regulation here. Even to subject them to

such constitutional doubt would do violence to settled expectations

that are part of the fabric of our American lives. The suggestion that

congressional power to enact such laws might be repudiated would

send a message of cynicism about human rights at so fundamental

a level as to be anathema to a society founded on the rule of law.

22

before the Court here, that they are designed to attack

purely local conduct, the ultimate results of that local

conduct must be taken into account. Local, individual

acts of discrimination and violence operate to exclude

targeted individuals and, ultimately, targeted groups

from the national economic life. By forestalling their

entry into certain jobs, thwarting their advancement in

jobs held, preventing them from owning homes, refusing

them capital to operate their own businesses, or denying

them the educations employers demand, purely local,

non-commercial acts of discrimination, hate, and

violence permit the badges and incidents of second class

citizenship to continue to exist. The exclusion of classes

of our citizenry from such economic participation cannot

be seen as anything other than substantial in terms of its

effect on the national economy. Preventing this evil is

squarely within the paradigm of appropriate federal

power.

C. The Case Before the Court Demonstrates

Appropriate Circumstances in Which to Apply the

Aggregation Principle.

A practical examination of ultimate effects also

underscores the conclusion that the Seventh Circuit was

correct in this case. Gradual eradication of migratory

bird habitat, although its effects may be virtually

unobservable in a local, limited territory, ultimately

inhibits people from expending monies and traveling

across state lines to hunt, trap, and observe migratory

species. The aggregate effect of the activity Congress

seeks to regulate — the filling of wetlands — plainly

would distort the national economy.

Just as decisions like Carter Coal attempted to

distinguish between “commercial” and “non-commercial

activities, so here petitioner urges that the applicability

23

of the cumulative impact test should turn on whether the

regulated activity is “economic.” (Brief for Petitioner at

45) Yet, a rigid “categorical rule” (see Morrison at 1748)

is neither constitutionally required nor logically

defensible in order to aggregate the effects of non-

economic activities when the impact of those activities is

felt in interstate commerce. To exalt such a rule to a

constitutional threshold would thus be error. We suggest

instead a more flexible and pragmatic approach; there

should be principles that move the debate beyond mere

labels.'2 The courts may ask a series of questions to

determine whether a given regulation falls within the

spheres of legitimate exercise of the commerce power, as

augmented by the Necessary and Proper Clause. Some

are: Does the subject matter entail special federal

competence? Does congressional action address an

absence of effective local regulation and enforcement? Is

the subject traditionally a matter of national concern?

Does the activity regulated have inherent interstate

effects?

'2 It contributes nothing to the debate to parade before the Court a

series of “horribles” demonstrating the ostensible danger of

governmental tyranny. The “backyard puddle” scenario (depicted by

petitioner as well as by the Washington Legal Foundation, the Cato

Institute, and the Center for Individual Rights) is calculated to take

the commerce power to a point of patent absurdity. There is no basis

to believe that Congress intended — or that respondents attempted

— to reach so far. One may likewise imagine our country in the

absence of laws founded upon the cumulative impact test, including

key environmental regulations and civil rights protections.

Imagination, however, is not needed, for in the latter case, the Court

need only look to the state of American Junsprudence and economic

and social life in the late 1920s, when the Court held national child

labor laws unconstitutional (see Hammer v. Dagenhart, 247 U.S. 251

(1918)), and in the late 1950s, when the National Guard was called

out to protect a young child who wished to attend a better public

school.

24

The federal government has developed special

competence in a variety of areas in part because of the

dual sovereign nature of our national and local

governments, in part because the people, through their

elected representatives, have reposed power in the

national government over two hundred and more years,

and in part because Congress has dedicated resources at

the federal level to problems of national scope. See, e.g.,

City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S.

624 (1973). An absence of effective local regulation and

enforcement leaves the power to enact such regulations

in the hands of Congress under the Commerce Clause.

See, e.g., North American Co. v. SEC, 327 U.S. 686, 704

(1946) (“The constitutionality of [the statute] thus

becomes apparent” when viewed in light of the

congressional objective “to rejuvenate local utility

management, and to restore effective state regulation,

both of which had been seriously impaired.”) Similarly,

a congressional finding that there is no tradition of

effective local regulation is owed judicial deference and

justifies Congress in acting to remedy national problems.

Certain areas are a traditional subject of national

concern, and in those areas Congress self-evidently

retains power to regulate. (As a corollary to this factor,

the Court may consider whether congressional exercise

of the commerce power will not interfere with areas of

traditional state concern. See Jones v. United States, 120

S.Ct. 1904 (2000); Lopez, 514 U.S. at 580 (Kennedy, J.,

concurring).)

Similarly, certain activities, regardless of whether

they may be said to have a “substantial effect” on

national commerce, nonetheless have an inherent

interstate effect. The ‘illing of wetlands, even isolated,

intrastate ones, has an inherent interstate effect. It

reduces the habitat available to migratory wildlife, whose

25

lives have no reference to state geographic boundaries. In

_ this connection, the Court traditionally, and properly,

has shown great deference to legislative findings of

impact on interstate commerce. See Hodel, 452 U.S. at

276; Katzenbach, 379 U.S. at 303-4; Heart of Atlanta, 379

U.S. at 258.

Civil rights protection traditionally is the special

province of the federal government, as shown by the

history of civil rights enforcement in this country. The

underlying policy is embodied in the Fourteenth

Amendment, which represents a reaffirmation of the

federal, constitutional right of equality and fair

treatment. Congress enacted the first Civil Rights Act in

1866, explicitly in response to the states’ failure to shield

individuals adequately from discrimination. Nearly a

century later, Congress again found that the states were

failing to enforce the civil rights of racial and other

minorities, and enacted the Civil Rights Act of 1964.

Such efforts, especially following the 1964 Act, have not

been wholly to the exclusion of state and local regulation,

yet nevertheless the history of civil rights enactment and

enforcement demonstrates that the area has been

traditionally entrusted to the national government.

Civil rights is also a matter of special national

concern. The commerce power necessarily entails the

power to protect every individual from local acts of

violence and discrimination that prevent that individual

from entering and fully participating in a national

economy.

26

D. Rejecting the Cumulative Impact Doctrine and the

Laws It Supports Would Undermine the Settled

Expectations of the People of our Nation.

The Court’s decisions ir, Lopez and Morrison are

plainly based on the interpretation of the Commerce

Clause in Wickard and the seminal civil rights cases

discussed above. These cases in turn are based on the

aggregation principle. Thus, throughout the 60 years

that it has been employed by the Court, the laws that the

aggregation principle buttresses have shaped the nation's

social evolution. As a result, Americans have come to

expect and believe that their national government shields

them from hate, bias, and prejudice, whatever its source.

To say now that the allocation of power that supports

this source of security is jurisdictional error would topple

the structure of modern American federalism. Respect

for precedent and for the settled expectations of the

American people caution against so radical a reversal.

In Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833, 854 (1992), the

Court specified four circumstances in which it might be

appropriate to upset such a settled line of precedent.

None applies here. The first is the “rare” case where a

“prior judicial ruling should come to be seen so clearly as

error that its enforcement was for that very reason

doomed.” Casey, 505 U.S. at 854. Neither constitutional

scholars nor the Justices of this Court are unanimous in

their evaluation of the cumulative impact doctrine. That

there are right-thinking lawyers, judges, and scholars

who regard the rule as well-founded belies any

contention that it is plainly erroneous. A rule of

constitutional adjudication that has endured for the last

half-century cannot be said to have been “doomed” from

adoption.

27

The second circumstance is where “the rule has

proven to be intolerable simply in defying practical

workability.” Jd. The cumulative impact test has yielded

workable results for many years. It requires a calculus

no more complex than any the Court employs in

resolving other competing claims. As reinforced by the

flexible and pragmatic analysis discussed above, the

cumulative impact test furnishes a practical framework

for articulating the limits on Congress’s commerce power.

The third circumstance is where “related

principles of law have so far developed as to have left the

old rule no more than a remnant of abandoned doctrine.”

Id. at 855. The result petitioner and its amici seek here

is not to replace one outmoded rule with another more

vital one, but to eliminate a key avenue through which

Congress may properly exercise the commerce power. No

new doctrine has emerged since Wickard. Indeed, recent

decisions indicate that the cumulative impact doctrine

retains its vitality — it is far from having been

“abandoned.” See, e.g., Allied-Bruce Terminix, 513 U.S.

265.

The fourth circumstance is where “facts have so

changed, or come to be seen so differently, as to have

robbed the old rule of significant application or

justification.” Id. The integrated national economy that

prompted the adoption of the aggregation principle has

only broadened and deepened. Now, no less than in the

time of Wickard, “Congress can regulate in the

commercial sphere on the assumption that we have a

single market and a unified purpose to build a stable

national economy.” Lopez, 514 U.S. at 574 (Kennedy, J.,

concurring). Clearly, and equally, civil rights protections

are no less vital now and have no less economic effect

than they were and had in the time of Heart of Atlanta

and Katzenbach. The horrific events in Jasper, Texas

28

and Laramie, Wyoming, while they are egregious and

certainly unrepresentative, serve to confirm this.

Casey also established the principle that the

Court will give additional weight to a constitutional rule

if it “is subject to a kind of reliance that would lend a

special hardship to the consequences of overruling and

add inequity to the cost of repudiation.” Casey, 505 U.S.

at 854. Overruling or further limiting the cumulative

impact doctrine would generate a reexamination of the

United States Code so profound and so far-reaching that

it would occupy the better part of the next half-century.

If the federal government’s power to protect civil rights

was called into question, millions of Americans would be

left without recourse in the face of discrimination. No

form of constitutional government could tolerate this type

of dislocation.

As we have sought to make clear, amici are

gravely concerned that the cramped and confined reading

of the Commerce Clause power that petitioner and its

amici urge here would be applied in future cases to

endanger civil rights laws that have become a part of the

settled expectations and fabric of our society. The federal

civil rights laws were enacted against a background of

decades of societal failure (principally, but not only,

regionally and locally) to implement fundamental

freedoms of the United States Constitution. In addition,

Congress understood the economic impact of

discrimination. It is no exaggeration to say that the

guarantee of equality embodied in those laws, together

with the enforcement mechanisms created by them and

the federal commitment to support them, have been in

part responsible for the United States’ emergence as the

world’s dominant economic power. The ability of the

29

American people as a whole to protect the weakest

among them preserves the very essence of our liberties.

To strip our nation of that capability, and return to a

long-discredited view both of the Constitution and the

national government, would be the height of folly.

30

CONCLUSION

The judgment below should be affirmed.

September 2000

Respectfully submitted,

MARTIN E. KARLINSKY, ESQ.

(Counsel of Record)

GILLY NADEL, Esq.

ROSENMAN & COLIN LLP

575 Madison Avenue

New York, New York 10022

(212) 940-8800

ELIZABETH M. COLEMAN, Esa.

STEVEN M. FREEMAN, ESQ.

MICHAEL LIEBERMAN, ESQ.

MICHAEL H. SAMPSOii, Esq.

ANTI-DEFAMATION LEAGUE

823 United Nations Plaza

New York, New York 10017

(212) 490-2525

ELLIOT M. MINCBERG, ESQ.

ALMA C. HENDERSON, ESQ.

PEOPLE FOR THE AMERICAN

WAY FOUNDATION

2000 M Street, N.W.

Washington, D.C. 20036

(202) 467-4999

Attorneys for Amici Curiae