# Amicus Curiae Brief — Rapanos v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A22

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 547 U.S. 715

## Text

.

No. 04-1034
———_Ez——XK&£;_—N—a—>—eE—O

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0067%3A22. Public record. Not legal advice.