Amicus Curiae Brief — Rapanos v. United States

.

No. 04-1034

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IN THE

Supreme Court of the Anited States

JOHN RAPANOS, ET UX., ET AL.,

Petitioners,

UNITED STATES,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals For The Sixth Circuit

Amicus CURIAE Brief OF THE CATO INSTITUTE IN

SupPortT OF PETITIONERS

TIMOTHY LYNCH .

(Counsel Of Record)

MARK K. MOLLER

THE CATO INSTITUTE

1000 Massachusetts Ave., N.W.

Washington, D.C. 20001

(202) 842-0200

Counsel for Amicus Curiae

_ PRINTING CO., INC. —- (202) 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Does the Clean Water Act prohibition on unpermitted

discharges to “navigable waters” extend to nonnavigable

wetlands that do not even abut a navigable water?

2. Does extension of Clean Water Act jurisdiction to

every intrastate wetland with any sort of hydrological

connection to navigable waters, no matter how tenuous or

remote the connection, exceed Congress’s constitutional

power to regulate commerce among the states?

TABLE OF CONTENTS

RE FURIE cccscscessscencennsinemescesreemanemmemmemanmaenit i

ee hiicericsitnnitastmsscsnemnsicattccnenidntapsenteinseniaeimnninneeiitel ii

ee i incnestenssnernescsnctiinimeasenecneaninnianinmanti ili

ee CD cccsnineeniceninnnizarinnestnrrpintsnnenieminenigoiestinn 1

re I co sinciniciignnstsensetaineriavitittiapgnecinaniensatitiiiiniiains |

TI cctentpateemsinasmnasiminmneapieimnniniaenijanee 3

A. Gonzales v. Raich Underscores That Positive “Assertions

of Authority” Clearly Contained In The Text Of A

Federal Statute Are A Prerequisite For Agency Action

Within The Periphery Of The Federal Commerce

PCI cnssscesersumeniisennmaspdentetinnenmeninntesionmenneeenimes 3

B. The “Hydrological Connection” Test Fails Traditional

Commerce Clause AnalySis...............:cccscseesseseseeessereeeees 17

iti

TABLE OF AUTHORITIES

Cases

AT&T Corp. v. Iowa Utils. Bd,

TT ctrssnecunrcshileishnnersiapidtanaebeinniomenntenniees 16

Community for Creative Non-Violence v. Reid,

SITET Aiccardaniensesintacinséqetbemnimniainsenniicieneniies 6

The Daniel Ball,

77 U.S. (10 Wall.) 557 (1871) .0......ccscccscssceserenssererseeseeees 5

Ex parte Boyer, :

IIT inicrnccnensitiinpinniccitubieivenidasenenteipintnenigines 5

FDA v. Brown & Williamson Tobacco Corp.,

Be ls BIE ccc snnetesenseccstesnnstaptinncetnmnipemnsseenneini 16

Gonzales v. Raich,

I ID icinirininecniciipeianeceninenienonmets passim

Rancho Viejo LLC v. Norton,

Be ee Be ire Gl Bi iccsetecinticcsessccenscnccsenseseeenn 18

Solid Waste Agency of Northern Cook County v.

United States Corps of Army Engineers,

ee ls Se sicrccenndticintcareestesiictiqnianninens 3, 6, 7,17

TRW, Inc. v. Andrews,

SE PIII cintnncdesisnsighennstecensceneaseemnigineesneusenmenengnee 7

United States v. Deaton,

8 iy CRUSTED 17

United States v. Lopez,

RF nT 13

United States v. Lopez,

ee I ccicnicencintnctnmnscgnssnimmatieneinn 2, 15, 18

United States v. Morrsion,

es I cecrisincttetiiicrenecincseinninmsentniquesiansins 2, 18

iv

United States v. Rapanos,

190 F. Supp. 2d 1011 (E.D. Mich. 2002) ............:ccscsscesees 2

United States v. Riverside Bayview Homes, Inc.,

GPO UB. TSE CRGBID nccsscteccccstvecctinesasiinstiitinsieiasaiinilinidias 17

Village of Oconomowoc Lake v. Dayton Hudson

Corp.,

24 F.3d 962 (7th Cir. 1994) oo... cccsecescessececseseeeereeeeeees 4,6

Statutes

Be Ware 1 GS cccscccccsnrssensrcssstnttanicinisiniiiniaiamainaalies 10, 12

SD UB. 6 TDOG I cccsrcsccesocsssnsssseessscsiansesiniemssiogiaantéiinns 1,5

FO UBL 8 TRO C Ea cccccccecescescssesenccseascainisncniiiimmasiauimmmaatati 6

SO WBA. © SIG F Ps ccccorescccstnspnsenesicnenninisaitgiiannigiammusaaiaa 5

Other

Jonathan H. Adler,

Wetlands, Waterfowl, and the Menace of Mr.

Wilson: Commerce Clause Jurisprudence and the

Limits of Federal Wetland Regulation, 29 Envtl.

. 8 CRIB ccccsscsorsssnssasetentssssatinistainnemeummmesiamninaiataa 19

EPA, SSO Fact Sheet (Nov. 25, 2005) .....c.cccessssseseeeseerererees 4

Ernest Gellhorn & Paul Verkuil,

Controlling Chevron-Based Delegations, 20

Cardozo L. Rev. 989 (1999) ........ccccsseseeesesseseeneeeees 15, 16

Frank H. Easterbrook,

Statutes’ Domains, 50 U. Chi. L. Rev. 533 (1983) ........ 15

Lisa Schultz Bressman,

Schechter Poultry at the Millennium: A

Delegation Doctrine for the Administrative State,

16D Valo L.. 3. 1FDD COBB) nccecccsosesccssscsensssccsssscestaniessesies 16

Vv

Raich Pet. Br, Gonzales v. Raich (No. 03-1454)..8, 9, 10, 11

Timothy K. Armstrong,

Chevron Deference and Agency Self-Interest, 13

Cornell J.L. & Pub. Pol’y 203 (2004) ...........ccccccesseseenees 16

Thomas W. Merrill,

Rescuing Federalism After Raich: The Case for

Clear Statement Rules, 9 Lewis & Clark L. Rev.

823 (2005) (forthcoming) ..................c.eececeereeeeees passim

Wetlands Desperado, Wall St. J., Aug. 29, 2004 ............0000 2

INTEREST OF AMICUS CURIAE!

The Cato Institute was established in 1977 as a non-

partisan 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, including, notably, publication of the Cato

Supreme Court Review. The instant case raises squarely

the question of the limits of the federal government’s

commerce power and is thus of central interest to the Cato

Institute and its Center for Constitutional Studies.

SUMMARY OF ARGUMENT

The Clean Water Act expressly authorizes federal

control over “navigable” water. 33 U.S.C. § 1344(a). But

the United States contends that it does more: that the

Act’s reference to “navigable waters” authorizes federal

control of waters and land that are neither navigable nor

wet. So long as land has a “hydrological” connection to

water that is navigable, however remote the connection

may be, says the government, the Clean Water Act

reaches it.

' In conformity with Supreme Court Rule 37, amicus has

obtained the consent of the parties to the filing of this brief and

letters of consent have been filed with the Clerk. Amicus also

states that counsel for a party did not author this brief in whole

or in part, and no person or entities other than the amicus, its

members, and counsel made a monetary contribution to the

preparation and submission of this brief.

2

The risibility of this fiction is evident on the facts of

this case: John Rapanos dumped sand into a man-made

ditch filled with rainwater. As a result, the federal

government brought criminal charges against Mr. Rapanos

under the Clean Water Act based on the risk that some

grains of that sand may, in an epic journey across drains,

ditches, and creeks, “hydrologically” wend their way to

the Kawkawlin River, twenty miles distant. See United

States v. Rapanos, 190 F. Supp. 2d 1011, 1012 (E.D.

Mich. 2002).

Nevermind that Mr. Rapanos’ land is not remotely

traversable by boat. Nevermind that Mr. Rapanos’ land

(now designated as a “wetland” by the Corps) has been

drained of standing water since the early 1900s, when a

county commission installed drains to reclaim the land for

farming, rendering it as dry as a bone. See, e.g., Wetlands

Desperado, Wall St. J., Aug. 29, 2004, available at

http://www.opinionjournal.com/editorial/feature.html?id=

110005541. While it is not “navigable” and it is not

“water,” says respondent, the government can still treat it

as such as a matter of law.

Respondent’s novel and expansive interpretation of

the Clean Water Act is at odds with the Court’s most

recent analysis of the federal commerce power in

Gonzales v. Raich, 125 S. Ct. 2195 (2005). In Raich, the

Court presumed that federal regulations located at the

periphery of the federal commerce power must be

grounded in positive “assertions of authority” (id. at 2205)

clearly contained in the fext of a governing federal statute.

Raich’s analysis is consistent with a key goal articulated

by the Court in United Siates v. Lopez, 514 U.S. 549

(1995), and United States v. Morrison, 529 U.S. 598

(2000): promoting accountable /egislative deliberation

about the scope of the commerce power. See, ¢.g.,

Thomas W. Merrill, Rescuing Federalism After Raich:

The Case for Clear Statement Rules, 9 Lewis & Clark L.

3

Rev. 823, 834 (2005) (forthcoming), available at

Raich dooms respondent’s textually-unmoored

“hydrological connection” test for agency jurisdiction

under the Clean Water Act.

ARGUMENT

RESPONDENT’S INTERPRETATION OF THE CLEAN

Water ACT IS INCONSISTENT WITH GONZALES V.

RAICH

A. Gonzales v. Raich Underscores That Positive

“Assertions Of Authority” Clearly Contained

In The Text Of A Federal Statute Are A

Prerequisite For Agency Action Within The

Periphery Of The Federal Commerce Power.

Gonzales v. Raich, supra, belies respondent’s novel

interpretation of the Clean Water Act. Raich is a case not

only about the meaning of the Commerce Clause, but

about where the burden of articulating a theory of the

Commerce Clause in hard cases is properly assigned. In

Raich, this Court assigned that burden to Congress in the

first instance, underscoring that regulatory action within

the periphery of the commerce power requires a clear

textual warrant contained in an agency’s authorizing

Statute.

1. Respondent’s theory of the statute is this:

“Navigable waters,” as used in the Clean Water Act,

encompass water possessing a “hydrological” nexus to an

“aquatic system” within the recognized jurisdiction of the

EPA, whether or not that water is “navigable.” Solid

Waste Agency of Northern Cook County v. United States

Army Corps of Engineers (“SWANCC”), 531 U.S. 159

(2001); Resp. Cert. Opp. 10 (quoting 42 Fed. Reg. 37,128

(1977)); Resp. Cert. Opp. 16.

4

That rule is nothing if not expansive. As Judge

Easterbrook has noted, it could plausibly embrace even

isolated puddles of rainwater contaminated with exhaust

fumes, lacking any surface connection—man-made or

otherwise—to open water. See, eg, Village of

Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962,

965 (7th Cir. 1994) (Easterbrook, J.) (municipality filed

Suit suggesting that trucks parked near a Target warehouse

“drip oil, which collects in the runoff from a storm” and

thence “into the ground—carrying hydrocarbons and other

unwelcome substances” into the groundwater and through

the groundwater into “streams, lakes, and oceans”; while

skeptical that the statute authorized liability based on such

a theory, Judge Easterbrook noted that “the possibility of

hydrological connection cannot be denied”). The

“hydrological connection” rule, in short, has no logical or

principled stopping point.’

? The EPA suggests that everyday homeowner nuisances—from

“clogged” or “frozen” pipes to “basement backups”—may exert

“hydraulic” system stress on municipal pipes, which in tum

may cumulatively impact water far removed from individual

parcels of property. See, e.g, EPA, SSO Fact Sheet 2-4 (Nov.

25, 2005), available at

www.epa. gov/npdes/sso/control/indext. htm (“freeze/thaw

cycles” and “clogged and collapsed lines due to root growth

and accumulation of debris, sediment, oil and grease” can

cumulatively result in “hydraulic stress” on “other parts” of the

system, which may eventually impact “rivers, streams, and

estuaries”); id. at 5 (“An untold number of private basement

backups occur each year . . . [not only] caus[ing] structural

damage to building frames” and “electrical and gas appliances,”

but “frequently spill[ing] into homeowner yards”); id. at 4

(suggesting that while it is “hard to gauge” the degree of

environment impact of such localized plumbing problems on

the degradation of waterways, they are “suspected as a

contributing factor”). If the “hydrological connection” rule is

taken seriously, and the EPA’s evidence is credited, there is no

The rule also has no basis in the text of the Clean

Water Act. Three textual hooks for the rule prese.,

themselves, but not one is a remotely plausible basis for

recognizing the “hydrological connection” test. First,

Section 404(a) of the Act authorizes federal control over

“navigable waters.” 33 U.S.C. § 1344(a); 33 U.S.C. §

1362(7). The term “navigable waters” is not, however,

ambiguous: as this Court has long held, “navigable

waters” are those that are “used or are susceptible of being

used ... as highways for commerce, over which trade

and travel are or may be conducted.” The Daniel Ball, 77

U.S. (10 Wall.) 557, 563 (1871). The term’s plain

meaning cannot support jurisdiction over water that is not

so described.

Nor can respondent find recourse in 33 U.S.C. §

1362(7), which defines “navigable waters” under the

Clean Water Act as the “waters of the United States.” As

Ex parte Boyer, 109 U.S. 629 (1884), held long ago, the

“water of the United States” is that which encompasses

“navigable water” used “for commerce between ports and

places of different States.” Jd. at 632.

To be sure, “waters of the United States” is a term of

art, derived from admiralty law. See id. Might it

therefore encompass administrative glosses on the Act,

including the hydrological connection test? No again:

This Court has consistently held that terms of art, when

logical basis for denying federal “police power” over the dirt

that flows from garden tools and soiled hands into the kitchen

sink and bathroom shower drain. Yet, to date, even the EPA

has not suggested it possesses the kind of general permit power

over private homeowners claimed by counties and

municipalities.

6

susceptible of multiple interpretations, must be construed

according to the meaning that best accords with, and does

not render superfluous, the plain text of the Act itself.

See, e.g., Community for Creative Non-Violence v. Reid,

490 U.S. 730, 741 (1989) (where the term “employee” is a

term of art susceptible of several interpretations under the

law of agency, the Court will choose the meaning most

“consistent with the text of the Act.”). Here, that rule

dictates that the term “waters of the United States” must

be assumed to qualify and narrow, not supplant and

expand, the textual term “navigable.”

The remaining possible textual basis for the

“hydrological connection” test is Section 404(g) of the

Act. Section 404(g) mandates reporting requirements for

state programs that issue permits for the dredging or infill

of “navigable waters,” but contains a murky parenthetical

that refers to “navigable waters (other than those waters

which are presently used, or are susceptible to use in their

natural condition or by reasonable improvement as a

means to transport interstate or foreign commerce. . .).”

33 U.S.C. § 1344(g) (emphasis added). The words “other

than,” respondent has argued, may suggest Congress

understands the term “navigable” to extend beyond

waters actually “navigable.” See, e.g, SWANCC, 531

U.S. at 171 (providing overview of government argument

premised on Section 404(g)).

> See also Village of Oconomowoc Lake, 24 F.3d at 965

(“‘Waters of the United States’ must be a subset of ‘water’;

otherwise why insert the qualifying phrase in the statute? (No

one suggests that the function of this phrase is to distinguish

domestic waters from th- + of Canada or Mexico.)”) (emphasis

in original).

J

Even if such an inference were possible, it does not

follow that Congress intended to grant respondent

authority over all waters “hydrologically connected” to

navigable water. The hydrological connection rule has no

discernable stopping point. It would render the terms

“navigable” and “waters of the United States” ineffective

meaningful limits on federal regulatory jurisdiction.

Put another way, the hydrological principle would support

jurisdiction in nearly all cases, leaving the terms

“navigable” and waters “of the United States” with little to

do. Whatever Section 404(g) may mean, it cannot be

attributed a meaning that either reads the plain text out of

the statute or that renders that text insignificant as a

practical matter. As this Court held in 7RW, Inc. v.

Andrews, 534 U.S. 19 (2001), a statutory construction that

“result/s] [in] a rule nowhere contained in the text... .

[that] would do the bulk of that provision’s work, while a

proviso accounting for more than half of that text would

lie dormant in all but the most unlikely situations,” is

categorically disfavored. /d. at 31.

In sum, the plain text of the Clean Water Act cannot

support the claim that non-navigable water with a

“hydrological connection” to navigable water is within

federal regulatory jurisdiction.

2. The government has suggested its capacious

reading of the Clean Water Act accords with the

Commerce Clause. Resp. Cert. Opp. 25 (“The power to

protect navigable waters is part of the commerce power

given to Congress.”). That argument echoes past rulings

of this Court that suggest that “navigable waters” include

all waters within the scope of the federal commerce

power. SWANCC, 531 U.S. at 168 n.3 (statement in

Conference Report that “the term ‘navigable waters’ be

given the broadest possible constitutional interpretation”

signifies “that Congress intended to exert .. . its

commerce power over navigation”); see also id. at 181,

182 (Stevens, J., dissenting) (noting that the Corps argues

that the statute requires it “to protect water quality to full

extent of the Commerce Clause,” and that is not confined

only to the “very heartland of its commerce power”).

Yet, in the wake of Gonzales v. Raich the Commerce

Clause is not available to respondent as a tool for

circumventing textual problems with the “hydrological

connection” test: This Court’s decision in Raich

underscores that the plain text of statutes enacted by

Congress is the sole guide for agencies acting, as the

Corps and EPA do here, within the periphery of the

commerce power.

a. Raich’s implicit “clear statement” rule—its

preference for agency action grounded in the clear text of

a governing statute—is evident when the legislative record

before the Court in Raich is compared with the evidence

upon which the majority actually relied in that case.

Respondents in Raich challenged the application of

schedule I of the Controlled Substances Act to wholly

intrastate, medicinal use of cannabis under the Commerce

Clause. Raich, 125 S. Ct. at 2200. Both parties in the

case agreed that application of the CSA to medicinal

cannabis, if it was to be upheld, must rest on Congress’s

residual power over commerce under the Necessary and

Proper Clause. As the Attorney General explained, under

the government’s theory, the Necessary and Proper Clause

allowed Congress to reach intrastate use of medical

marijuana because regulation of such use is “an essential

part of a larger regulation of economic activity.” See, e.g.,

Raich Pet. Br. 12, Gonzales v. Raich (No. 03-1454)

(quoting Lopez, 514 U.S. at 561) (hereinafter “Raich Pet.

Br.”).

Accordingly, the Attorney General’s briefs in Raich

strove toward one end: creating a legislative record that

might support a deferential judicial finding of “necessity.”

9

See, e.g., id. at 16-20 (compiling “legislative judgments

regarding whether the intrastate activity at issue

substantially affects interstate commerce”).

In an effort to compile that record, the Attorney

General highlighted three different categories of

legislative findings:

First, he quoted extensively from findings found in the

legislative history of the Controlled Substances Act. See

id. at 17-18 (quoting H.R. Rep. No. 1444, 91st Cong., Ist

Sess., pt. 1, at 1, 3. 6 (the Act establishes a

“comprehensive” and “‘closed’ system of drug

distribution”)); id. at 18-19 (quoting S. Rep. No. 613, 91st

Cong., Ist Sess., at 3-4) (the drug trade constitutes

“commercial activity” that “takes place in interstate and

foreign commerce”)); see id. at 17-18 (quoting S. Rep.

No. 613, supra, at 3 (Congress was concerned with

preventing diversion of controlled substances from legal

to illicit channels)); id. at 19 (quoting S. Rep. No. 613,

supra, at 3-4 (noting scope of “nonmedical” and

“nonprescription” cross-border drug smuggling)); id.

(quoting S. Rep. No. 613, supra, at 2, 3 (at time of

passage, marijuana offenses accounted for “the bulk of

drug arrests”)); id. at 22-23 (quoting H.R. Rep. No. 1444,

supra, pt. 1, at 29 (Congress deemed it “necessary to make

the controls . . . applicable to all controlled substances

regardless of whether they or their components have ever

been outside the State in which they are found”)); id. at 23

(citing H.R. Rep. No. 1444, supra, pt. 1, at 29 (controlled

substances commonly flow through interstate commerce

“immediately prior to . . . possession”)).

Second, the Attorney General relied on factual

findings of executive branch agencies entrusted with

enforcement of the Controlled Substances Act. See id. at

18-19 (quoting DEA, Drug Trafficking in the United

States 1 (Sept. 2001) (the drug trade generally constitutes

10

“commercial activity” that “takes place in interstate and

foreign commerce”)); id. at 19 (quoting Drug Availability

Steering Committee, Drug Availability in the United

States 103 (Dec. 2002) (documenting the current

economic value of the trade in recreational marijuana)).

Third, the Attorney General relied on additional

statutory findings, contained within the enacted text of the

Controlled Substance Act, see 21 U.S.C. §§ 801(1)-(6)

(expressing Congress’s judgment that a “major portion of

the traffic in controlled substances flows through interstate

and foreign commerce”; and “[ijncidents of the traffic

which are not an integral part of the interstate or foreign

flow . . . nonetheless have a substantial and direct effect

upon interstate commerce”). See Raich Pet. Br. at 4-5, 23,

31, 39 (quoting 21 U.S.C. § 801).

The Attorney General argued that, together, those

sources demonstrated Congress had made an intelligible,

deference-worthy judgment that regulating local

possession of marijuana is “necessary” to effective federal

control of interstate trafficking. /d. at 16, 20-21, 23-24,

28-29, 43.

b. The Raich Court held that Congress’s legislative

findings deserved substantial deference. In so holding,

however, the Court marginalized supporting evidence

extraneous to the text and structure of the CSA.

Indeed, legislative judgments contained in the

legislative history—which had figured so prominently in

the Attorney General’s briefs—-were almost entirely

excluded from the majority’s analysis.‘ The Court turned

* The Court’s sole use of legislative history to support the

existence of a material “legislative judgment” is found in

footnote 21, where the Court refers to legislative history that

evidences Congress’s “particular” concern with the “need to

prevent the diversion of drugs from legitimate to illicit

11

a blind eye to that history even though it (1) contained the

record’s only direct and unqualified statement of

“legislative judgment” that categorical control of “all”

intrastate use of marijuana is “necessary” to the

suppression of marijuana in the interstate marketplace and

also (2) contained the only evidence, however indirect,

that Congress was aware marijuana may have medicinal,

or some other social, value. See, e.g., id. at 23 (quoting

H.R. Rep. No. 1444, supra, pt. 1, at 29 (Congress deemed

it “necessary to make the controls of [the CSA] applicable

to all controlled substances regardless of whether they or

their components have ever been outside the State in

which they are found”) (emphasis added)); Raich Pet.

Reply at 9 (quoting H.R. Rep. No. 1444, supra, pt. 1, at 12

(noting that “there are some who would not only advocate

[marijuana’s] legalization but encourage its use”)).°

Instead, the Court focused on the CSA’s express

textual findings: that a “major portion of the traffic in

channels.” Raich, 125 S. Ct. at 2203 n. 21 (citing United States

v. Moore, 423 U.S. 122, 135 (1975) and H.R. Rep. No. 1444,

pt. 2, at 22 (1970)). However, this evidence did not add to the

textual evidence, but rather concerned the intensity of

legislative concerns that the Court noted were independently

apparent in the text and structure of the CSA. See Raich, 125

S. Ct. at 2203-04 (noting that the structure of the CSA

evidences a desire to devise “a closed regulatory system

making it unlawful to manufacture, distribute, dispense, or

possess any controlled substances except in a manner

authorized by the CSA”) (citing 21 U.S.C. §§ 811, 812, 821-30,

841(aX 1), 844(a)).

* By contrast, the legislative findings contained in 21 U.S.C. §

801(6) stated only that control of intrastate “incidents of

traffic”’—not “all” simple noncommercial intrastate use,

unconnected with traffic—is “essential” to the integrity of the

ban on interstate trafficking in controlled substances. See, e.g.,

21 U.S.C. § 801(6).

12

controlled substances flows through interstate commerce,”

that local “distribution and possession” contribute to

“swelling the interstate traffic in such substances,” and

that enforcement difficulties “attend distinguishing

between marijuana cultivated locally” and marijuana

grown in and transported from another state. See Raich,

125 S. Ct. at 2203 (noting that Congress’s “main

objectives” were to “conquer drug abuse and to control the

legitimate and illegitimate traffic in controlled

substances”) (quoting 21 U.S.C. §§ 801(1)-(6)); id.

(stating that “Congress devised a closed regulatory

system”) (citing 21 U.S.C. § 841({a)(1)); id. at 2208

(noting that “[flindings in the introductory sections of the

CSA explain why Congress deemed it appropriate to

encompass local activities within the scope of the CSA”)

(citing 21 U.S.C. §§ 801(1)-(6)); id. at 2208 (noting

Congress’s judgment about the “enforcement difficulties

that attend distinguishing between marijuana cultivated

locally and marijuana grown elsewhere”) (citing 21

U.S.C. § 801(5)).

Raich’s selective treatment of the record evidence

highlights the decision’s import for this case: When

federal agencies seeks deference for actions within the

periphery of the federal commerce power, Raich suggests

judgments evident in, and supported by, the clear fext of a

federal statute—not those contained in extraneous

sources—deserve judicial deference.°

® The Court also relied, in a footnote, on the fact that the CSA’s

textual scope has been replicated by other statutes that similarly

aim to effect a comprehensive ban on interstate traffic in a

ibed article of commerce, see, e.g., Raich, 125 S. Ct. at

2211 n.36 (treating parallel statutory structure as evidence that

the enforcement choices reflected in the CSA are rational).

That evidence remains squarely focused on text—i.e., on

13

To be sure, the Court rejected the argument that

legislation, to qualify for deference, must “contain

detailed findings proving that each activity regulated

within a comprehensive scheme is essential to the

statutory scheme.” Jd. at 2208 n.32. That objection,

however, does not gainsay the fact that the CSA’s text

monopolized the Raich majority’s analysis: it merely

denies that the text must identify with specificity each

possible challenged application of the statute in advance.

For the Raich Court, it was enough that the statute,

through its iext and structure, reflected a coherent theory

of “necessity’—namely, that local transactions have a

direct economic (a “swelling”) effect on supply in the

interstate market. /d. at 2207. Any further requirement—

i.e., that Congress must anticipate a challenge premised on

state authorization of medicinal cannabis use—would be

“impractical.” Jd. at 2208 n.32 (“[s]uch an exacting

requirement [of precise specificity] is not only

unprecedented, it is also impractical”). See also Merrill,

Rescuing Federalism Afier Raich, 9 Lewis & Clark L.

Rev. at 850 (endorsing clear statement rule, but noting that

it would be “unusual, not to say unworkable,” to make the

test turn on Congress’s ability to identify in advance each

specific factual application authorized).

c. By anchoring record analysis of regulatory

“necessity” on the clear textual choices contained in the

four corners of the Controlled Substance Act, Raich

retains some consistency with the Court’s prior Commerce

Clause analysis in United States v. Lopez and United

States v. Morrison. \n Lopez, the Fifth Circuit struck

down the Gun Free School Zones Act based on the

absence of pertinent legislative findings (United States v.

inferences that may be drawn from the replication of enacted

text and statutory structure in other, parallel statutory schemes.

14

Lopez, 2 F.3d 1342, 1367 (Sth Cir. 1993)); the Supreme

Court, in turn, cited the absence of legislative finJings as

one of the factors that disabled a determination “that the

activity . . . substantially affected interstate commerce.”

Lopez, $14 US. at 563. See also Merrill, Rescuing

Federalism After Raich, 9 Lewis & Clark L. Rev. at 836-

37. And the text of the Violence Against Women’s Act,

struck down in Morrison, included a similarly “bare

assertion of power to legislate; there [was] no explication

in the text of the constitutional theory that would support

legislation under the Commerce Clause, nor any

enumeration of findings in the text.” See Merrill,

Rescuing Federalism After Raich, 9 Lewis & Clark L.

Rev. at 848.” See 42 U.S.C. § 13981(a) (2000).

The clear statement rule -'so respects the

overarching liberty principles that Lopez and Morrison

sought to secure. “We start with first principles,” Chief

Justice Rehnquist famously wrote in Lopez. “{T]he

powers delegated by the . . . Constitution to the federal

government are few and defined”—an enumeration that in

turn “[e]nsur{es] protection of our fundamental liberties.”

Lopez, 514 U.S. at 552. Clear statement rules, like the

kind practiced in Raich, offer additional protection for

liberty interests that the enumeration of powers in Article I

and the separation of powers more generally are designed

to safeguard. As Judge (then-Professor) Frank

Easterbrook notes:

Those who wrote and approved the Constitution

thought that most social relations should be

” While Congress did make legislative findings when it passed

the Violence Against Women Act, those findings were

contained in the Act’s legislative history. | See Merrill,

Rescuing Federalism After Raich, 9 Lewis & Clark L. Rev. at

848

15

governed by private agreements . . A rule

declaring statutes inapplicable unless they plainly

resolve or delegate the solution of the matter

legislature supplies a fix or authorizes someone

else to do so, . . . judges [have no reason] to rush

in.

Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L.

Rev. 533, 549-50 (1983).

d. The clear statement rule also mitigates the risk that

agencies will interpret Raich as an invitation to executive

aggrandizement. The risk is palpable: If, after Raich,

agencies can use legislative history, statutory purpose, or

context to manufacture ambiguity nowhere apparent from

the text of a statute, and if, in turn, agencies interpreting

their power under “ambiguous” statutes are granted both

the full quantum of deference owed to Congress under

Raich and under Chevron, the potential for agency

aggrandizement is immense, indeed. See Merrill,

Rescuing Federalism After Raich, 9 Lewis & Clark L.

Rev. at 834 (clear statement rule protects against threat

that executive actors will “leverage” grants of power “into

regulations that expand federal authority in new ways,”

thereby “unilaterally changing the scope of federal

authority”).

The clear statement test reduces that risk by ensuring

that agency action at the outer limits of federal power

(where the risk of agency aggrandizement is greatest, see,

e.g., Emest Gellhom & Paul Verkuil, Controlling

Chevron-Based Delegations, 20 Cardozo L. Rev. 989,

991-92 (1999) (“concern about agency aggrandizement is

at its highest” . . . “[w]here agency self-interest is directly

16

implicated”), is cabined by an objective limiting standard

grounded in the text of the statute.

3. Applied to the “hydrological connection” test, the

Raich “clear statement” rule dooms respondent’s bid to

criminalize petitioner’s conduct in this case. As even the

respondent must concede, neither the text nor the structure

of the Clean Water Act provides any warrant for the

“hydrological connection” test. See also Merrill, Rescuing

Federalism Afier Raich, 9 Lewis & Clark L. Rev. at 849

(noting that the Court would be correct to invalidate “any

. . . construction of the Clean Water Act grounded in a

* Concern about executive aggrandizement is not new to the

Court: it is echoed in the Court’s evolving approach to

Chevron deference, which has suggested (1) that the

“reasonableness” prong in step two of the Chevron test should

regulatory

e.g., AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 388 (1999)

(agency interpretation fails Chevron step two because agency

failed to supply a “limiting standard, rationally related to the

goals of the Act”); see also Lisa Schultz Bressman, Schechter

Poultry at the Millennium: A Delegation Doctrine for the

Administrative State, \09 Yale L. J. 1399 (2000)); and (2) that

deference is particularly inappropriate where the interpretation

implicates the agency’s self-interest in perpetuating its own

power. See FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 159 (2000) (“A court may also ask whether the legal

question is an important one. Congress is more likely to have

focused upon, and answered, major questions, while leaving

interstitial matters to answer themselves in the course of the

statute’s daily administration.”). See also Timothy K.

Armstrong, Chevron Deference and Agency Self-Interest, 13

Cornell J.L. & Pub. Pol’y 203, 262 (2004) (noting, after careful

analysis, that Brown & Williamson “would appear to provide a

rationale for questioning any interpretation that serves to

expand the reach of an administrative agency’s regulatory

authority”).

17

articulated an intention to permit regulation on that

theory”). At best, the “hydrological connection” test finds

support in indirect legislative history (i.e., Congressional

acquiescence to executive interpretations and speculative

inferences derived from unenacted legislative proposals).

See, e.g., United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 132-39 (1985); SWANCC, 531 U.S. at 180-

81, 183-87 (Stevens, J., dissenting).

Because the hydrological connection rule has no basis

in statutory text and would extend agency power at the

periphery of the federal commerce power (Resp. Cert.

Opp. at 22 (suggesting power over non-navigable waters

is rooted in peripheral power over channels of commerce

granted by the Necessary and Proper Clause) (quoting

United States v. Deaton, 332 F.3d 698, 707 (4th Cir.

2003), it must be rejected.

B. The “Hydrological Connection” Test Fails

Traditional Commerce Clause Analysis

While this case is resolvable on the basis of clear-

statement principles, it is also capable of resolution—and

should be resolved—based on an independent, non-

deferential judicial analysis of the Clean Water Act under

the Commerce Clause.

The wetlands regulation at issue here does not purport

to directly regulate “channels” or “instrumentalities of

commerce,” but rather to regulate activity that may

indirectly affect channels or instrumentalities. As such,

the regulation is justifiable solely under the third prong of

commerce clause regulation identified in United States v.

Lopez: as regulation of activity that “substantially affects”

interstate commerce. Lopez, 514 U.S. at 559-60. Yet, as

United States v. Morrison made clear, isolated local

activity cannot be aggregated under the substantial effects

test unless the activity is itself “economic” in nature.

18

Morrison, 529 U.S. at 610. Raich did not dispute this

holding: To the contrary, the Court expressly reiterated

Morrison’s statement that, under the “substantial effects”

test, “economic activity” forms the proper basis for

aggregation, see Raich, 125 S. Ct. at 2211.

Indeed, the Raich Court upheld the Controlled

Substances Act not only because the CSA “directly

regulates economic, commercial activity,” including the

“production, distribution, and consumption of

commodities” /id.), but because the CSA does so' with the

intent to affect prices and distribution within a larger

market. /d. at 2207 n.29 (noting that in Wickard,

Congress sought to “protect and stabilize” the “wheat

market,” while Congress sought, under the Controlled

Substances Act, to eradicate the marijuana market); id. at

2208 (“as in Wickard, when it enacted comp. chensive

legislation to regulate the interstate market in a fungible

commodity, Congress was acting well within its authority

to ‘make all Laws which shall be necessary and proper’ to

‘regulate Commerce””).

Here, it is impossible to discern any “commercial” or

“economic” nexus in the sense articulated by Morrison

and Raich. Lopez directs our attention to “the activity

being regulated”—tere, literally, the filling of a ditch in a

cornfield with sand. See, eg, Rancho Viejo LLC v.

Norton, 334 F.3d 1158, 1160 (D.C. Cir. 2003) (Roberts,

J., dissenting from denial of reh’g en banc). Even if it

might be argued that the dumping of sand is the

“distribution” or “consumption” of a commodity (since

sand can be bought and sold), and that the use of sand

will—multiplied across thousands of cornfields, bogs,

sand boxes, and drainage ditches—‘“affect” the going

price for sand bags nationally, no one can plausibly argue

that the Clean Water Act is designed to regulate the price

of sand trafficked on the interstate market. Compare

Raich, 125 S. Ct. at 2207 n.29 (noting that Congress

19

sought, under the Controlled Substances Act, to eradicate

the marijuana “market”).

Indeed, any such suggestion would raise serious

concerns that the Clean Water Act is premised on exactly

the sort of pretextual Commerce Clause justifications that

both the majority and dissent in Raich suggested are

impermissible. See Raich, 125 S. Ct. at 2210 n.34

(recognizing possibility of “‘evasive’ legislation” written

“for the purpose of targeting purely local activity” but

denying the CSA was such a statue); id. at 2223

(O’Connor, J., dissenting) (warning of “evasive”

legislative strategies in which Congress regulates

“comprehensively,” in order to receive deference under

Raich, but does so “exclusively for the sake of reaching

intrastate activity”).°

* Nor, for that matter, is the class of activity defined in the

Clean Water Act inherently commercial, as the Court has

required in Raich and other cases: “The Corps has asserted that

it could regulate ‘walking, bicyclying or driving a vehicle

through a wetland,” if it so chose, because such activities could

result in the ‘discharge of dredged material.’ Clearly,

regulatory authority of this scope extends far beyond the

regulation of purely commercial activity.” Jonathan H. Adler,

Wetlands, Waterfowl, and the Menace of Mr. Wilson:

Commerce Clause Jurisprudence and the Limits of Federal

Wetland Regulation, 29 Envtl. L. 1, 35 (1999).

20

CONCLUSION

For the foregoing reasons, the decision of the U.S.

Court of Appeals for the Sixth Circuit should be

overruled.

Respectfully submitted,

TIMOTHY LYNCH

(Counsel Of Record)

MARK K. MOLLER

THE CATO INSTITUTE

1000 Massachusetts Ave., N. W.

Washington, D.C. 20001

(202) 842-0200

Counsel for Amicus Curiae

December 2005.