Amicus Curiae Brief — Rapanos v. United States

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Nos. 04-1034, 04-1384——=

In The

Supreme Court of the United States

RAPANOS, ef al., Petitioners,

Vv.

__ UNITED STATES, Respondent.

CARABELL, ef al., Petitioners,

Vv.

U. S. Army Corps of Engineers, et al., Respondents.

On Writ of Certiorari

to the United States Court of Appeals

For the Sixth Circuit

Brief of Amicus Curiae The Claremont Institute

Center for Constitutional Jurisprudence

In Support of Petitioners

Edwin Meese ITI John C. Eastman

214 Massachusetts Ave. N.E Counsel of Record

Washington D.C. 20002 The Claremont Institute Center

for Constitutional Jurisprudence

c/o Chapman Univ. School of Law

One University Dr.

Orange, CA 92866

(714) 628-2500

Counsel for Amicus Curiae The Claremont Institute

Center for Constitutional Jurisprudence

————————E—E—————————E——E————

1.

QUESTIONS PRESENTED

Does extension of Clean Water Act jurisdiction to every

intrastate wetland with any sort of hydrological connec-

tion to navigable waters, no matter how tenuous or re-

mote the connection, exceed Congress’ constitutional

power to regulate commerce among the states?

(i)

ii

TABLE OF CONTENTS

gE ONIN ONE cccrsnnceccensesenennnmensapnsntmnnetsnsnasemense i

Re Oe Fa ND wrtnenieserninrninnemnmmnnen iii

INTEREST OF AMICUS CURIAE..............0.0..00.cresccescoessessesee ]

SUMMARY OF ARGUMENT ............:.ccssssssssseseesesensesseseess 3

ee 5

I. By Interpreting the Clean Water Act to Cover

Isolated Wetlands, the Corps Has Ignored the

Principle of Enumerated Powers, a Principle

Whicn the Founders Believed to Be Essential to

II. The Expansive Application of the Clean Water

Act to Isolated Wetlands Is Neither a Regulation

of Commerce Nor a Necessary and Proper Means

of Giving Effect to a Regulation of Commerce. ......... 11

III. Even under the expanded view of the Commerce

Clause taken in this Court’s modern-era

precedents, the Corps’ expansive claims of

jurisdiction exceed the outer limits of the power

OP GID, ccrncteensecsessarintninistncnrnainnepntnni 17

IV. The Department of Justice Should Have

Confessed Error Once This Court Issued Its

ee ee line nenncscetnssteneseicarsenntenmatinemnsnsnaectios 24

IS crencccnnsseceevsnsssnensenetessmrpssenasepmesnasnoneancamnnsneie 26

ili

TABLE OF AUTHORITIES

CASES

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

Se ee: SE scenscscersicretneneictnenbesnitiesiideabinipenstiahinbineimaicinion 13

Alden v. Maine,

I IE, COI se oriisiescesttnepesicliniiiniamempeseatinonaeiaibnn 3, 22

Arizona v. Evans,

ey ee chcesienrinctentbniamnecensnnnintinniontianeninniaimaninete 9

Atascadero State Hospital v. Scaniin,

Se Se ncsiececetincaiiianenntnvemananninbennieniens sibitiainliied 9

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

a ee ET iiisestdaitiiehiesehesetncitenictnstutcanedenmeineniaiatiiatie 13

Bartkus v. People of State of Illinois,

I: GE IIE ircicnahisnenirnastnscpocinntdieicnctiniaieiniaieaeliaibesinl 5

Bowman v. Railway Co.,

Ses SE EE ciniepcntnanicapinnipinnicneticiiinnentanrentetininlintions 13

Brown v. Maryland,

25 U.S. (12 Wheat.) 419 (1827) .........cecccssssscessesesersreeenss 13

Brzonkala v. Virginia Polytechnic Institute and State

University, 169 F.3d 820 (CA4 1999), aff'd sub nom,

United States v. Morrison, 529 U.S. 598 (2000).............. 23

Camps Newfound/Owatonna v. Town of Harrison,

Ss Sa as ET niicictinnencstintinsiadneecnnintapictinnetii 15

Carabell v. U.S. Army Corps of Engineers,

Pe Ce Fr ee errcrteecernssnetnnennctmenninaininnn 18

Carter v. Carter Coal Co.,

Be ee ee iricttetinrnattcnvnnsemmnnniiinn 10, 14

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984).........ccccccccsseereeeees 18, 19

iv

College Sav. Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666 (1999)......:ccsseeeseees 3, 22

Corfield v. Coryell,

PAs BF Tee 8 | a 11

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

Chicago, 107 U.S. 678 (1883)...........crccscssersorsessessesseresee 22

FERC v. Mississippi,

ee 9

Florida Prepaid Postsecondary Educ. Expense Bd. v.

College Sav. Bank, 527 U.S. 627 (1999) ........ccseseeseeees 3, 22

Garcia v. San Antonia Metropolitan Transportation

Authority, 469 U.S. 528 (1985) ........ccccccssessesesercenes 6, 9, 14

Gibbons v. Ogden,

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

Gregory v. Ashcroft,

Pt ef, | 4,8,9

In re Rahrer,

BOD UD. SOD CRG E) a ccencccseceveessccsnsccenscsensetsinsssctanenianinnmnns 13

Kidd v. Pearson,

BD EEE. 5 Co eceencennnnttoiernsnsssinsinsictinntimitioninamees 13

Leisy v. Hardin,

BSS CFB. GD COD xccccoscvsecsecscressesevenscciatsonescnvcsnensencesonns 13

M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) 0... cceeecseereeereeees 8, 10, 16

Metro Broadcasting, Inc. v. Federal Communications

Commission, 497 U.S. 547 (1990).......:ccccesceseeerseeeerseenees 25

Miller v. City of New York,

LGD UB. SBS (UGB). .0c.ccccrerveececsccccescrscccsecsssnssntonscsnseseeseont 21

Mobile Co. v. Kimball,

163 UB. GPL CUGBD). .nccrcrcccsccerserecereccrescvcescessonscossssnsesnesses 13

v

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

RE Ee se)

New York v. United States,

Ee 3,4,5

Printz v. United States,

eee 3, 22

Seminole Tribe of Florida v. Florida,

Te 3, 4, 22

Solid Waste Agency of Northern Cook County v. U.S.

Army Corps of Engineers,

A ee 2, 19

South Carolina v. Georgia,

ES a 21

South Covington & C. St. R. Co. v. City of Covington,

TT neniinictsipnnninnisrcnimennteneseseentneimedtion 22

The Daniel Ball,

Fe ee Ce CD Be CF cccecccccnccncsscsszcsnssnccscecenesanset 21

The License Cases,

46 U.S. (S How.) 504 (1847) ......ccccsrssocsccsccerssesrecesseesenses 13

United States v. Chicago, M., St. P. & P. R. Co.,

nine ian precintarinsetnemnsianenstosentanien 21

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

Re 10, 12, 13, 14

United States v. Lopez,

TT EE passim

United States v. Morrison,

TE Ae passim

United States v. Rapanos,

FE Fe E0 GSU BOOP crececencesescczsevcecssessessescenenscsens 16, 18

vi

United States v. Riverside Bayview Homes, Inc.,

GEO Fp Ge rertentennenstinnmmmnnen 18, 21

Virginia Dep't of Ed. v. Riley,

eee 25

Virginia v. Tennessee,

SII TINE inrnsiinrentprscnrintbdntantenelneanmaiensineaiabemtel 23

West Virginia ex rel. Dyer v. Sims,

a Een 23

CONSTITUTIONAL PROVISIONS,

STATUTES, AND REGULATIONS

a Rk eee 16

EE ee 20, 22

TD | ae 21

SE 20

Oe —

Declaration of Independence, § 2...........:.0-0:+sersesenesersensneeees 6

OU 8

JR PR OS Se 8

CG, Cpe AMD. 1, Bae. Dheccarcsccscsssscsscsszsscsnssssenscessscssmessenees 8

U.S. CONST. ART. I, sec. 8, cl. 3

8 passim

U.S. CONST. ART. I, sec. 8, cl. 18

(Necessary and Proper Clause) ...............-c-scssseeseerees 16, 21

OTHER AUTHORITIES

Coxe, Tench, Letter to the Virginia Commissioners at

Annapolis (Sept. 13, 1786), reprinted in 3 THE

FOUNDERS’ CONSTITUTION 473-74 (P. Kurland & R.

a nee 5

Eastman, John C.,“A Fistful of Denial: The Supreme

Court Takes a Pass on Commerce Clause Challenges

to Environmental Laws,” 2004 CATO SUPREME

COURT REVIEW 469 (2004) ..0.........cccecceeeceeeessersneensnenncnenens 2

FEDERALIST NO. 22 (Hamilton) (C. Rossiter, ed., 1961)........ 5

FEDERALIST NO. 33 (Hamilton)..................-c-ssseseeeereeseeseeeeneees 9

FEDERALIST NO. 39 (Madison) ..............-..-.-:-sessesseseecereeneneeees 7

FEDERALIST NO. 42 (Madison).................--esseseeserseserseneensenees 5

FEDERALIST NO. 45 (Madison) ................:.c0csesesseseeereeeeees 7, 10

FEDERALIST NO. 47 (Madison) ..............c--cceeesseeeeeseseeseeeeeeees 6

FEDERALIST NO. 51 (Madison)...................:+:-sse-esseeeeeeeeees 6,9

Jones, Gordon, and Marini, John, THE IMPERIAL

CONGRESS: CRISIS IN THE SEPARATION OF POWERS............. 2

Olson, Theodore, Confirmation Hearing on the

Nominations of Larry D. Thompson to be Deputy

Attorney General and Theodore B- Olson to be

Solicitor General of the United States, Hearing

Before the S. Comm. on the Judiciary, 107th Cong.

127 (2001) (statement of Theodore Olson) (Sup. Doc.

No. ¥4.J89/2:S.HRG. 107-250) ............cccccecsensseereseerseenees 25

Presidential Authority to Decline to Execute

Unconstitutional Statutes, 18 Op. OFFICE OF LEGAL

ee 25

viii

Wilson, James, Pennsylvania Ratifying Convention,

(Dec. 4, 1787), pee were

rcctstecahiittetiesttiesintsiteeipnasiiininiaipraiinnesatammasinnmney 7

Wilson, ieies telieiataiaiiaieniiaia titties

Convention (Nov. 26, 1787), reprinted in 2 J.

WILSON, THE WORKS OF JAMES WILSON 770 (R.

Nos. 04-1034, 04-1384

In The

Supreme Court of the Anited States

RAPANOS, ef al., Petitioners,

Vv.

UNITED STATES, Respondent.

CARABELL, ef al., Petitioners,

Vv

U. S. Army Corps of Engineers, ef al., Respondents.

On Writ of Certiorari

to the United States Court of Appeals

For the Sixth Circuit

Brief of Amicus Curiae The Claremont Institute

Center for Constitutional Jurisprudence

In Support of Petitioners

INTEREST OF AMICUS CURIAE' |

The Claremont Institute for the Study of Statesmanship

and Political Philosophy is a non-profit educational founda-

tion whose stated mission is to “restore the principles of the

' The Claremont Institute Center for Constitutional Jurisprudence files

this brief with the consent of all parties. The letters granting consent have

been previously filed. Counsel for a party did not author this brief in

whole or in part. No person or entity, other than amicus curiae, its mem-

bers, or its counsel made a monetary contribution specifically for the

preparation or submission of this brief.

2

American Founding to their rightful and preeminent author-

ity in our national life,” including the principle, at issue in

this case, that We the People delegated to the national gov-

ernment only certain, specifically enumerated powers and

that the bulk of sovereign power, including the police power

at issue here, was reserved to the States or to the people. The

Institute pursues its mission through academic research, pub-

lications, scholarly conferences and, via its Center for Con-

stitutional Jurisprudence. the selective appearance as amicus

curiae in cases of cons‘: ational significance. Of particular

relevance here, the Institute has a Center for Local Govern-

ment, which promotes the theory and practice of self-

government, emphasizing the themes of limited, constitu-

tional government, federalism, property rights, and energetic

citizenship. In addition, the Institute has published exten-

sively about the constitutional limitations on the powers

delegated to the national government, including John C.

Eastman, “A Fistful of Denial: The Supreme Court Takes a

Pass on Commerce Clause Challenges to Environmental

Laws,” 2004 CATO SUPREME COURT REVIEW 469 (2004), and

a book edited by Gordon Jones and Institute Senior Fellow

John Marini entitled THE IMPERIAL CONGRESS: CRISIS IN THE

SEPARATION OF POWERS.

The Claremont Institute Center for Constitutional Juris-

prudence has participated as amicus curiae before this Court

in several other cases of constitutional import, including

Kelo v. City of New London, Connecticut, 125 S.Ct. 2655

(2005); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Zelman v.

Simmons-Harris, 536 U.S. 639 (2002), Solid Waste Agency

of Northern Cook County v. U.S. Army Corps of Engineers,

531 U.S. 159 (2001) (“SWANCC”), Boy Scouts of America v.

Dale, 530 U.S. 640 (2000); and United States v. Morrison,

529 U.S. 598 (2000). It seeks to elaborate on the arguments

that have been made by Petitioners regarding the scope of

the power delegated to Congress under the Commerce

Clause. The Claremont Institute believes that its scholarly

3

expertise about the theoretical and historical origins of the

American constitutional system of government will aid this

Court in evaluating whether the assertion of jurisdiction

made by the Army Corps of Engineers over wetlands with

only a tenuous hydrological connection to any navigable wa-

ode guhontharocungntee arpa eadtemaaeenan ate

late commerce among the states.

SUMMARY OF ARGUMENT

Over the past decade and a half, this Court has reinvigo-

rated the Founders’ vision of a constitutional system based

on a division of the people’s sovereign powers between the

national and state governments. In New York v. United

States, 505 U.S. 144, 156-57 (1992), for example, the Court

recognized that the principle of reserved powers underlying

the Tenth Amendment serves as a barrier to the exercise of

power by Congress. In Printz v. United States, 521 U.S.

898, 923-24 (1997), the Court recognized that the principle

was grounded not so much in the text of the Tenth Amend-

ment but in the word “proper” of the Necessary and Proper

clause, as informed by the overall structure of the Constitu-

tion and the numerous clauses that recognize the retention of

sovereign powers by the States. This same idea of state sov-

ereignty has been given voice in the parallel cases arising

under the Eleventh Amendment: Seminole Tribe of Florida

v. Florida, 517 U.S. 44 (1996); Alden v. Maine, 527 U.S.

706 (1999); College Sav. Bank v. Florida Prepaid Postsec-

ondary Educ. Expense Bd., 527 U.S. 666 (1999); Florida

Prepaid Postsecondary Educ. Expense Bd. v. College Sav.

Bank, 527 U.S. 627 (1999).

Yet for the Founders, the division of sovereign powers

was not designed simply or even primarily to insulate the

states from federal power. It was designed so that the states

might serve as an independent check on the federal govern-

ment, preventing it from expanding its powers against ordi-

nary citizens. United States v. Morrison, 529 U.S. 598, 616

4

n.7 (2000); United States v. Lopez, 514 U.S. 549, 552, 582

(1995). And it was designed so that decisions affecting the

day-to-day activities of ordinary citizens would continue to

be made at a level of government close enough to the people

so as to be truly subject to the people’s control. See Gregory

v. Ashcroft, 501 U.S. 452, 458 (1991). The Tenth and Elev-

enth amendments are simply examples of what the Founders

accomplished principally through the main body of the Con-

stitution itself. Congress was delegated only specifically

enumerated powers (and the necessary means of giving ef-

fect t= those powers) over subjects of truly national concern;

it was not given a general police power to control the ordi-

nary, local activities of the citizenry.

In interpreting the federal Clean Water Act to cover wet-

lands which have, at best, only a tenuous connection to the

navigable waters of the United States, for clearly police

power rather than commerce power purposes, the United

States Army Corps of Engineers has taken the statute well

beyond the constitutional bounds of the Commerce Clause.

U.S. Const. ArT. I, § 8, cl. 3. The Corps’ effort to regulate

isolated wetlands is not a regulation of commerce, and it is

not a law that gives effect to some regulation of commerce

(much less a “necessary” and “proper” one). To construe the

Commerce Clause as broadly as the Corps does here is to

render meaningless the primary check on federal power en-

visioned by the founders—the doctrine of limited, enumer-

ated powers. Moreover, by essentially preempting land use

decisions of all 50 states and their thousands of municipal

subdivisions, the Corps has here intruded upon the powers

reserved to the States in a way that makes the intrusions at

issue in New York v. United States and Seminole Tribe look

relatively minor.

5

ARGUMENT

I. By Interpreting the Clean Water Act to Cover Iso-

lated Wetlands, the Corps Has Ignored the Principle

of Enumerated Powers, a Principle Which the Foun-

ders Believed to Be Essential to Liberty.

When the framers of our Constitution met in Philadelphia

in 1787, it was widely acknowledged that a stronger national

government than existed under the Articles of Confederation

was necessary if the new government of the United States

was going to survive. The Continental Congress could not

honor its commitments under the Treaty of Paris; it could not

meet its financial obligations; it could not counteract the

crippling trade barriers that were being enacted by the sev-

eral states against each other; and it could not even insure

that its citizens, especially those living on the western fron-

tier, were secure in their lives and property. See, e.g., Letter

from Tench Coxe to the Virginia Commissioners at Annapo-

lis (Sept. 13, 1786), reprinted in 3 THE FOUNDERS’ CONSTI-

TUTION 473-74 (P. Kurland & R. Lerner eds., 1987) (noting

that duties imposed by the states upon each other were “as

great in many instances as those imposed on foreign Arti-

cles”); THE FEDERALIST No. 22, at 144-45 (Hamilton) (C.

Rossiter, ed., 1961) (referring to “[t]he interfering and un-

neighborly regulations in some States,” which were “serious

sources of animosity and discord” between the States); New

York, 505 U.S., at 158 (“The defect of power in the existing

Confederacy to regulate the commerce between its several

members [has] been clearly pointed out by experience")

(quoting THE FEDERALIST No. 42, p. 267 (Madison) (C. Ros-

siter ed. 1961)).

But the framers were equally cognizant of the fact that

the deficiencies of the Articles of Confederation existed by

design, due to a genuine and almost universal fear of a

strong, centralized government. See, e.g., Bartkus v. People

of State of Illinois, 359 U.S. 121, 137 (1959) (“the men who

6

wrote the Constitution as well as the citizens of the member

States of the Confederation were fearful of the power of cen-

tralized government and sought to limit its power”); Garcia

v. San Antonia Metropolitan Transportation Authority, 469

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

Chief Justice Burger and Justices Rehnquist and O’Connor).

Our forebears had not successfully prosecuted the war

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

other form of tyranny.

The central problem faced by the convention delegates,

therefore, was to create a government strong enough to meet

the threats to the safety and happiness of the people, yet not

so strong as to itself become a threat to the people’s liberty.

See THE FEDERALIST NO. 51, at 322 (Madison). The framers

drew on the best political theorists of human history to craft

a government that was most conducive to that end. The idea

of separation of powers, for example, evident in the very

structure of the Constitution, was drawn from Montesquieu,

out of recognition that the “accumulation of all powers, leg-

islative, executive, and judiciary, in the same hands . . . may

justly be pronounced the very definition of tyranny.” THE

FEDERALIST NO. 47, at 301 (Madison).

But the framers added their own contribution to the sci-

ence of politics, as well. In what can only be described as a

radical break with past practice, the Founders rejected the

idea that the government was sovereign and indivisible. In-

stead, the Founders contended that the people themselves

were the ultimate sovereign, see, e.g., James Wilson, Speech

at the Pennsylvania Ratifying Convention (Nov. 26, 1787),

reprinted in 2 J. WILSON, THE WORKS OF JAMES WILSON 770

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

their sovereign powers, to a single government or to multiple

governments, as, in their view, was “most likely to effect

their Safety and Happiness,” Declaration of Independence, {

2. The importance of the division of sovereign powers was

7

highlighted by James Wilson in the Pennsylvania ratifying

convention:

I consider the people of the United States as forming

one great community, and I consider the people of

the different States as forming communities again on

a lesser scale. From this great division of the people

into distinct communities it will be found necessary

that different proportions of legislative powers should

be given to the governments, according to the nature,

number and magnitude of their objects.

Unless the people are considered in these two views,

we shall never be able to understand the principle on

which this system was constructed. I view the States

as made for the people as well as by them, and not the

people as made for the States. The people, therefore,

have a right, whilst enjoying the undeniable powers

of society, to form either a general government, or

state governments, in what manner they please; or to

accommodate them to one another, and by this means

preserve them all. This, I say, is the inherent and un-

alienable right of the people.

James Wilson, Pennsylvania Ratifying Convention, (Dec. 4,

1787), reprinted in | THE FOUNDERS’ CONSTITUTION 62.

As a result, it became and remains one of the most fun-

damental tenets of our constitutional system of government

that the sovereign people delegated to the national govern-

ment only certain, enumerated powers, leaving the residuum

of power to be exercised by the state governments or by the

people themselves. See, e.g., THE FEDERALIST NO. 39, at 256

(Madison) (noting that the jurisdiction of the federal gov-

ernment “extends to certain enumerated objects only, and

leaves to the several States a residuary and inviolable sover-

eignty over all other objects”); THE FEDERALIST No. 45, at

292-93 (Madison) (“The powers delegated by the proposed

Constitution to the federal government are few and defined.

Those which are to remain in the State governments are nu-

merous and indefinite”); M’Culloch v. Maryland, 17 U.S. (4

Wheat.) 316, 421 (1819) (Marshall, C.J.) (“We admit, as all

must admit, that the powers of the government are limited

and that its limits are not to be transcended”); Gregory, 501

U.S. at 457 (“The Constitution created a Federal Govern-

ment of limited powers”).

This division of sovereign powers between the two great

levels of government was not simply a constitutional add-on,

by way of the Tenth Amendment See U.S. CONST. Amend.

X (“The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved

to the States respectively, or to the people”). Rather, it is

inherent in the doctrine of enumerated powers embodied in

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

ArT. I, Sec. 1 (“All legislative Powers herein granted shall

be vested in a Congress of the United States” (emphasis

added)); U.S. Const. ArT. I, Sec. 8 (enumerating powers so

granted); see also M'Culloch, 17 U.S. (4 Wheat.), at 405

(“This government is acknowledged by all, to be one of

enumerated powers. The principle, that it can exercise only

the powers granted to it, . . . is now universally admitted”);

Lopez, 514 U.S., at 552 (“We start with first principles. The

Constitution creates a Federal Government of enumerated

powers”).

The constitutionally-mandated division of the people’s

sovereign powers between federal and state governments

was not designed to protect state governments as an end in

itself, but rather “was adopted by the Framers to ensure pro-

tection of our fundamental liberties.” Lopez, 514 U.S., at

552 (quoting Gregory, 501 U.S., at 458); see also Morrison,

120 S. Ct., at 1753 n.7 (“As we have repeatedly noted, the

Framers crafted the federal system of government so that the

people's rights would be secured by the division of power”

9

(citing Arizona v. Evans, 514 U.S. 1, 30 (1995) (Ginsburg,

J., dissenting); Gregory, 501 U.S., at 458-59; Atascadero

State Hospital v. Scanlin, 473 U.S. 234, 242 (1985) (quoting

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

469 U.S., at 582 (O’Connor, J., dissenting) (“This division of

authority, according to Madison, would produce efficient

government and protect the rights of the people”) (citing THE

FEDERALIST No. 51, pp. 350-351 (Madison) (J. Cooke ed.

1961)). “Just as the separation and independence of the co-

ordinate branches of the Federal Government serve to pre-

vent the accumulation of excessive power in any one branch,

a healthy balance of power between the States and the Fed-

eral Government will reduce the risk of tyranny and abuse

from either front.” Lopez, 514 U.S., at 582 (quoting Greg-

ory, 501 U.S., at 458); Gregory, 501 U.S., at 459 (quoting

THE FEDERALIST No. 28, pp. 180-81 (Hamilton) (J. Cooke

ed. 1961)); id. (quoting THE FEDERALIST No. 51, p. 323

(Madison) (J. Cooke ed. 1961)); see also Garcia, 469 U.S..,

at 581 (O’Connor, J., dissenting) (“[The Framers] envisioned

a republic whose vitality was assured by the diffusion of

power not only among the branches of the Federal Govern-

ment, but also between the Federal Government and the

States” (citing FERC v. Mississippi, 456 U.S. 742, 790

(1982) (O’Connor, J., dissenting)); id, at 571 (Powell, J.,

dissenting) (“The Framers believed that the separate sphere

of sovereignty reserved to the States would ensure that the

States would serve as an effective ‘counterpoise’ to the

power of the Federal Government”).

When Congress (or a federal agency, in supposed reli-

ance on an act of Congress) acts beyond the scope of its

enumerated powers, therefore, it does more than simply in-

trude upon the sovereign powers of the states; it acts without

constitutional authority, that is, tyrannically, and places our

liberties at risk. See, e.g, THE FEDERALIST NO. 33, at 204

(Hamilton) (noting that laws enacted by the Federal Gov-

ernment “which are not pursuant to its constitutional powers,

10

but which are invasions of the residuary authorities of the

smaller societies . . . will be merely acts of usurpation, and

will deserve to be treated as such”).

Foremost among the powers not delegated to the federal

government was the power to regulate the health, safety, and

morals of the people—the so-called police power. See, e.g.,

THE FEDERALIST No. 45, at 292-93 (Madison) (“The powers

reserved to the several States will extend to all the objects

which, in the ordinary course of affairs, concern the lives,

liberties, and properties of the people, and the internal order,

improvement, and prosperity of the State”); Gibbons v.

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

power over these objects is granted to Congress; and, conse-

quently, they remain subject to State legislation”); United

States v. E. C. Knight Co., 156 U.S. 1, 11 (1895) (“It cannot

be denied that the power of a state to protect the lives, health,

and property of its citizens, and to preserve good order and

the public morals, ‘the power to govern men and things

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

always belong to the states, not surrendered by them to the

general government”). The powers at issue in this case—the

granting of land use permits and the regulation of wholly in-

trastate “wetlands”—are within the core of the police powers

reserved to the states or to the people.

Congress does retain some measure of discretion to

choose the means necessary for giving effect to its enumer-

ated powers, of course, see infra, at 20-21, but it cannot use

its discretionary power over means in furtherance of ends not

granted to it. As Chief Justice Marshall noted in M’Culloch

v. Maryland: “[{S]hould congress, under the pretext of exe-

cuting its powers, pass laws for the accomplishment of ob-

jects not intrusted to the [national] government; it would be-

come the painful duty of this tribunal . . . to say, that such an

act was not the law of the land.” 17 U.S. (4 Wheat.), at 423;

see also Carter v. Carter Coal Co., 298 U.S. 238, 317 (1936)

11

(Hughes, C.J., separate opinion) (“Congress may not use this

protective [commerce] authority as a pretext for the exertion

of power to regulate activities and relations within the states

which affect interstate commerce only indirectly”). Because,

as described below, Congress’s attempts, as interpreted by

the Corps of Engineers, to link the vintage exercise of the

state police powers at issue here to its power to regulate in-

terstate commerce is pretext of the highest order, Chief Jus-

tice Marshall’s admonition is directly on point: It is the duty

of this Court to say that the interpretation of the Clean Water

Act propounded by the Corps of Engineers is not the law of

the land.

Il. The Expansive Application of the Clean Water Act to

Isolated Wetlands Is Neither a Regulation of Com-

merce Nor a Necessary and Proper Means of Giving

Effect to a Regulation of Commerce.

As originally conceived, Congress’s power under the

Commerce Clause was limited to the regulation of interstate

trade. See, e.g., Corfield v. Coryell, 6 F. Cas. 546, 550

(C.C.E.D.Pa. 1823) (Washington, J., on circuit) (“Commerce

with foreign nations, and among the several states, can mean

those states, for purposes of trade, be the object of the trade

what it may”); Lopez, 514 U.S., at 585 (Thomas, J., concur-

ring) (“At the time the original Constitution was ratified,

“commerce” consisted of selling, buying, and bartering, as

well as transporting for these purposes”). Indeed, in the first

major case arising under the clause to reach this Court, it was

contested whether the Commerce Clause even extended so

far as to include “navigation.” Chief Justice Marshall, for

the Court, held that it did, but even under his definition,

“commerce” was limited to “intercourse between nations,

and parts of nations, in all its branches.” Gibbons, 22 U.S. (9

Wheat.), at 190; see also Corfield, 6 F. CAS., at 550

(“Commerce . . . among the several states . . . must include

12

all the means by which it can be carried on, [including] . . .

passage over land through the states, where such passage be-

comes necessary to the commercial intercourse between the

states”).

The Gibbons Court specifically rejected the notion “that

{commerce among the states] comprehend{s] that commerce,

which is completely internal, which is carried on between

man and man in a State, or between different parts of the

same State, and which does not extend to or affect other

States.” Gibbons, 22 U.S., at 194 (quoted in Morrison, 529

U.S., at 616 n.7). In other words, for Chief Justice Marshall

and his colleagues, the Commerce Clause did not even ex-

tend to trade carried on between different parts of a state.

The notion that the power to regulate commerce among the

states included the power to regulate wholly intrastate wa-

terways, therefore, would have been completely foreign to

them. And a fortiori, any claim that the Commerce Clause

encompassed a power to make land use regulations govern-

ing what a man could do on his own property, merely be-

cause his property abutted a ditch that connected to a creek,

which in turn connected to a river that at some point became

navigable—shared “a hydrological connection” that put them

into a “symbiotic relationship” is the way the Sixth Circuit

described it below, United States v. Rapanos, 376 F.3d 629,

640 (CA6 2004)—would have been beyond the pale. Add to

that tenuous connection the true purpose of the Clean Water

Act, which is to protect aquatic ecosystems rather than inter-

state commerce, and the claim of power asserted here by the

Corps would have been quite incomprehensible to those who

drafted and ratified the Commerce Clause.

This originally narrow understanding of the Commerce

Clause continued for nearly a century and a half. Manufac-

turing was not included in the definition of commerce, held

the Court in EC. Knight, 156 U.S., at 12, because “Com-

merce succeeds to manufacture, and is not a part of it.” “The

13

fact that an article is manufactured for export to another

State does not of itself make it an article of interstate com-

merce ....” /d., at 13; see also Kidd vy. Pearson, 128 US. 1,

20 (1888) (upholding a state ban on the manufacture of liq-

uor, even though much of the liquor so banned was destined

for interstate commerce). Neither were retail sales included

in the definition of “commerce.” See The License Cases, 46

U.S. (5 How.) 504 (1847) (upholding state ban on retail sales

of liquor, as not subject to Congress’s power to regulate in-

terstate commerce); see also A.L.A. Schecter Poultry Corp.

v. United States, 295 U.S. 495, 542, 547 (1935) (invalidating

federal law regulating in-state retail sales of poultry that

originated out-of-state and fixing the hours and wages of the

intrastate employees because the activity related only indi-

rectly to commerce).

For the Founders and for the Courts which decided these

cases, regulation of such activities as retail sales, manufac-

turing, and agriculture (as well as local land use), was part of

the police powers reserved to the States, not part of. the

power over commerce delegated to Congress. See, e.g., E.C.

Knight, 156 U.S., at 12 (“That which belongs to commerce is

within the jurisdiction of the United States, but that which

does not belong to commerce is within the jurisdiction of the

police power of the State”) (citing Gibbons, 22 U.S. (9

Wheat.), at 210; Brown v. Maryland, 25 U.S. (12 Wheat.)

419, 448 (1827); The License Cases, 46 U.S. (5 How.), at

599; Mobile Co. v. Kimball, 102 U.S. 691 (1880); Bowman

v. Railway Co., 125 U.S. 465 (1888); Leisy v. Hardin, 135

U.S. 100 (1890); In re Rahrer, 140 U.S. 545, 555 (1891));

Baldwin v. Fish and Game Comm'n of Mont., 436 U.S. 371

_ (1978). And, as the Court noted in E.C. Knight, it was essen-

tial to the preservation of the states and therefore to liberty

that the line between the two powers be retained:

It is vital that the independence of the commercial

power and of the police power, and the delimitation

14

between them, however sometimes perplexing,

should always be recognized and observed, for, while

the one furnishes the strongest bond of union, the

other is essential to the preservation of the autonomy

of the States as required by our dual form of govern-

156 U.S., at 13; see also Carter Coal, 298 U.S., at 301 (quot-

ing E.C. Knight); Garcia, 469 U.S., at 572 (Powell, J., dis-

senting, joined by Chief Justice Burger and Justices

Rehnquist and O’Connor) (“federal overreaching under the

Commerce Clause undermines the constitutionally mandated

balance of power between the States and the Federal Gov-

ernment, a balance designed to protect our fundamental lib-

erties”).

While these decisions have since been criticized as un-

duly formalistic, the “formalism”—f it can be called that at

all—is mandated by the text of the Constitution itself. See,

e.g, Lopez, 514 U.S., at 553 (“limitations on the commerce

power are inherent in the very language of the Commerce

Clause”) (citing Gibbons); id. at 586 (Thomas, J., concur-

ring) (“the term ‘commerce’ was used in contradistinction to

productive activities such as manufacturing and agricul-

ture”). And it is a formalism that was recognized by Chief

Justice Marshall himself, even in the face of a police power

regulation that had a “considerable influence” on commerce:

The object of [state] inspection laws, is to improve

the quality of articles produced by the labour of a

country; to fit them for exportation; or, it may be, for

domestic use. They act upon the subject before it be-

comes an article of foreign commerce, or of com-

merce among the States, and prepare it for that pur-

pose. They form a portion of that immense mass of

legislation [reserved to the States]. . . . No direct gen-

eral power over these objects is granted to Congress,

15

and, consequently, they remain subject to State legis-

lation.

Gibbons, 22 U.S., at 203; see also id., at 194-95 (“Compre-

hensive as the word ‘among’ is, it may very properly be re-

stricted to that commerce which concerns more States than

one. . . . The enumeration presupposes something not enu-

merated; and that something, if we regard the language or the

subject of the sentence, must be the exclusively internal

commerce of a State”). As this Court noted recently in Lo-

pez, the “justification for this formal distinction was rooted

in the fear that otherwise ‘there would be virtually no limit to

the federal power and for all practical purposes we would

have a completely centralized government.” 514 U.S., at

555 (quoting Schechter Poultry, 295 U.S., at 548).

As should be obvious, the interpretation of the Clean

Water Act at issue here is not a regulation of “commerce

among the states,” as that phrase was understood by those

who framed and those who ratified the Constitution, and nei-

ther court below even addresses, much less persuasively

demonstrates, any commerce clause authority for the regula-

tion at issue here. Rapanos and Carabell each sought to

make improvements on their own land, not engage in inter-

state commerce. Land, of course, is the quintessential thing

that does not move in interstate commerce. See Camps New-

found/Owatonna v. Town of Harrison, Maine, 520 U.S. 564,

609 (1997) (Thomas, J., dissenting).

To be sure, each of the petitioners had standing water on

their land, and that standing water may have soaked into the

land enough to qualify the land as “wetland.” It is even pos-

sible that some of the moisture on their land might eventu-

ally find its way, through ditch and dell, to navigable waters

of the State of Michigan, and those navigable waters might

themselves ultimately be connected to navigable waters of

the United States. But to contend, as the government did be-

low in the two cases at issue here and in the previous crimi-

16

nal matter involving the Rapanos petitioners, that the Clean

Water Act’s definition of “navigable waters,” expansively

interpreted by regulation to include “wetlands adjacent to

traditional navigable waters,” 33 C.F.R. § 328.3(a)(7), can

constitutionally be expanded even further to permit federal

regulation of this land—nearly-twenty miles from the nearest

navigable stream in the Rapanos’ case, United States v. Ra-

panos, 339 F.3d 447 (CA6 2003)—is to render meaningless

any notion of limits on federal power.

Nor does the Necessary and Proper Clause provide a

valid ground for the Corps of Engineers expansive assertion

of power here. As has long been recognized, that clause

gives Congress power over the means it will use to give ef-

fect to its enumerated powers; it does not serve as an end

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

187 (describing the phrase “necessary and proper” as a “limi-

tation on the means which may be used”); M’Culloch, 17

U.S. (4 Wheat.), at 324 (describing the Necessary and Proper

Clause as merely a means clause). There has to be a regula-

tion of commerce to which Congress hopes to give effect

when it acts pursuant to the Necessary and Proper Clause,

and there is no such regulation here. Congress simply cannot

use such a pretextual reed to support its exercise of what is

essentially a police power. M'Culloch, 17 U.S. (4 Wheat.),

at 423.” Thus, while it is undoubtedly true that, in today’s

world, the quantum of “commerce among the states” is much

larger than in the founding era, the expansion in quantity

does not give Congress a different qualitative power.

2 Indeed, the whole Clean Water Act, and not just the expanded inter-

pretation propounded by the Corps of Engineers that is at issue here, is

arguably unconstitutional pretext. Ensuring the navigability of the na-

tion’s waters would be a Commerce Clause purpose, but that is not what

the Clean Water Act purports to do. See infra, at 20-21.

17

Under the original view of the Commerce Clause, there-

fore, this is an extremely easy case. Indeed, it is hard to

imagine regulations more removed from the Commerce

Clause power, as originally understood, than the interpreta-

tions of the Clean Water Act put forward by the Corps of

Engineers here and its analogous “migratory bird” rule al-

ready invalidated by this Court in SWANCC.

Ill. Even under the expanded view of the Commerce

Clause taken in this Court’s modern-era precedents,

the Corps’ expansive claims of jurisdiction exceed

the outer limits of the power afforded to Congress.

Even when this Court expanded the original understand-

ing of the Commerce Clause in order to validate New Deal

legislation enacted in the wake of the economic emergency

caused by the Great Depression, it was careful to retain cer-

tain limits lest the police power of the States be completely

subsumed by Congress. Thus, in V.LAB. v. Jones &

Laughlin Steel Corp., this Court stated that the power to

regulate commerce among the states “must be considered in

the light of our dual system of government and may not be

extended so as to embrace effects upon interstate commerce

so indirect and remote that to embrace them, in view of our

complex society, would effectually obliterate the distinction

between what is national and what is local and create a com-

pletely centralized government.” 30] U.S. 1, 37 (1937)

(quoted in Lopez, 514 U.S., at 557; Morrison, 529 U.S., at

608). Similarly, Justice Cardozo noted in Schechter Poultry

that “[t]here is a view of causation that would obliterate the

distinction of what is national and what is local in the activi-

ties of commerce.” 294 U.S. 495, 554 (1935) (Cardozo, J.,

concurring) (quoted in Lopez, 514 U.S., at 567; Morrison,

529 US., at 616 n.6).

These reservations were key to this Court’s decisions in

Lopez, Morrison, and played a prominent role in SWANCC

as well. See Lopez, 514 U.S., at 566; Morrison, 529 U.S., at

18

608; SWANCC, 531 U.S., at 173-74. As in those cases, the

interpretation of the Clean Water Act at issue here does not

regulate the channels or the instrumentalities of interstate

commerce. Try as they might, the Rapanos and Carabell

petitioners cannot transport any goods from their land to

market via a waterway that begins in the moist soil of their

own land (even assuming that the moisture itself can make

its way to a navigable stream—a factually disputed point).

Nor does there appear to be any substantial effect on in-

terstate commerce, and the courts below do not bother to

identify one, or even to address this component of the Lopez

analysis. Instead, the Court of Appeals based its decisions

on the Corps’ contorted statutory claim that the addition of

fill dirt to Petitioners’ own properties fell under the Corps’

jurisdiction because the moist soil on the property might

cross a berm and move into a ditch, which “connects to the

Sutherland-Oemig Drain, which empties into the Auvase

Creek, which empties into Lake St. Clair, which is part of the

Great Lakes drainage system.” Carabell v. U.S. Army Corps

of Engineers, 391 F.3d 704, 705 (CA6 2004). Merely to

state the supposed connection is to refute it, yet this broad

interpretation of the Clean Water Act is entitled to Chevron

deference, we are told in Rapanos, because the Corps’ inter-

pretation is “neither ‘arbitrary, unreasonable, or manifestly

contrary to the statute.” Rapanos, 376 F.3d, at 641 (quoting

Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984)).

Although the Rapanos court mentioned this Court’s hold-

ing in SWANCC that Chevron deference does not apply

"where an otherwise acceptable construction of a statute

would raise serious constitutional problems,” it nevertheless

refused to follow that holding, noting instead that this Court

had applied Chevron deference in the pre-SWANCC (and

pre-Lopez) case of United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121 (1985). Riverside Bayview dealt

19

with lands directly adjacent to a navigable lake, of course, so

the potential connection with interstate commerce was at

least arguable. 474 U.S., at 124. Even assuming Chevron

deference remains appropriate in those circumstances, the

SWANCC rule must be applied when, as here, the constitu-

tionality of the interpretation is much more tenuous. Adja-

cent to a ditch, that leads to a creek, that leads to a river, that

ultimately has a hydrological connection with navigable wa-

ter, is a far cry from directly adjacent to a navigable lake,

particularly in light of the supposed Commerce Clause au-

thority for the regulation.

But again, the lower courts do not even address, much

less demonstrate, that the Corps’ interpretation fits within

even the far outer limits of Commerce Clause authority. The

addition of fill dirt to Petitioners’ respective properties might

alter the ecology of the area, which in turn would—what?—

neither the lower courts nor the government even bothered to

articulate a Commerce Clause purpose furthered by the

Corps of Engineers’ expansive jurisdictional claims.

At least in SWANCC, the government made an effort to

tie ite regulatory claims to an interstate financial impact by

arguing that a decline in the migratory bird populations

might result in fewer people traveling across state lines to

hunt, trap and observe the migratory birds, which would in

turn cause a decline in expenditures made by such traveling

bird hunters and bird watchers, which would amount to a

substantial effect on interstate commerce. Solid Waste

Agency of Northern Cook County v. U.S. Army Corps of En-

gineers, 191 F.3d 845, 850 (7th Cir. 1999). This Court quite

sensibly questioned those claims in SWANCC as raising

“significant constitutional questions.” 531 U.S., at 173. We

could go farther, and recognize them for what they truly

were—a merely pretextual use of a commerce clause hook to

attempt to validate an unconstitutional assertion of a police

power. See Lopez, 514 U.S., at 567. Yet the government’s

20

contentions in support of federal power here are even weaker

than they were in SWANCC, and the government offers pre-

cious little to rationalize its power grab on Commerce Clause

grounds, even pretextually. Rather, having lost the pretex-

tual argument in SWANCC, the government seems bent on

making a frontal assault on the very notion of limited, enu-

merated powers, boldly asserting a police power ground to

support its claim of power. If it is successful, it would “con-

vert congressional authority under the Commerce Clause to a

general police power of the sort retained by the States”—the

very concern that motivated this Court to strike down the

Violence Against Women Act in Morrison, 529 U.S., at 615.

In short, even under the expanded view of the Commerce

Clause that has been in place since the New Deal, the inter-

pretation of the Clean Water Act proffered by the Corps of

Engineers remains what it would have been for Chief Justice

Marshall: A pretext for the exercise of police powers by

Congress, powers that were and of right ought to be reserved

to the States, or to the people.

The statute enacted by Congress does not actually pre-

tend otherwise. Its express purpose is not to insure the navi-

gability of the nation’s waterways—a proper commerce

clause purpose—but is rather “to restore and maintain the

chemical, physical, and biological integrity of the Nation’s

waters”—a clear police power purpose. See 33 U.S.C.

§ 1251 (a).

If the statute merely prohibited the discharge into navi-

gable waters of dredged or filled material, or other pollutants

that could reasonably threaten navigability, the law would

_arguably be both a necessary and a proper means to further

Congress’s powers under the Commerce Clause, because

such discharges could at some point threaten navigation.’

> This is true even under the statutory definition of “navigable waters” as

“the waters of the United States, including the territorial seas.” 33

21

But the statute prohibits the discharge of “any pollutant,” not

just dredged or filled materia] or other pollutants that would

threaien navigability. 33 U.S.C. § 1311. There is therefore

not the jurisdictional element that this Court described as

important in Lopez. 514 U.S., at 560. Moreover, under the

Corps’ interpretation, the statute prohibits the discharge of

fill even in intrastate “mudflats, sandflats, wetlands, sloughs,

prairie potholes,” etc-—waters having no connection what-

U.S.C. § 1362(7). “The waters of the United States” is both broader and

more narrow than “navigable waters,” from a commerce clause perspec-

tive. The phrase is narrower because the clause “of the United States”

has historically excluded waters that are wholly within a single state,

whether navigable or not. See, e.g., Miller v. City of New York, 109 U.S.

385, 395-96 (1883) (“by ‘navigable waters of the United States’ are

meant such as are navigable in fact, and which, by themselves or their

connection with other waters, form a continuous channel for commerce

with foreign countries or among the states” (citing The Daniel Ball, 77

U.S. (10 Wall.) 557 (1870)); South Carolina v. Georgia, 93 U.S. 4, 10

(1876) (describing the navigable waters of the United States as those

“which are accessible from a State other than those in which they lie”);

United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 596

(1941) (same). The phrase is broader because “waters” would seem to

include non-navigable waters, which could be reached by Congress under

the Necessary and Proper Clause (rather than the Commerce Clause di-

rectly), only if regulation of such waters was both necessary and proper to

further Congress’s Commerce Clause powers. Hence, this Court’s hold-

ing in Riverside Bayview Homes, Inc., 474 U.S., at 133-35, that Congres-

sional power extends to wetlands that are adjacent to, and thereby di-

rectly affect, navigable waters (at least arguably). But even if Riverside

Bayview remains good law after SWANCC, extending that holding to

cover “waters” that are not adjacent to navigable waters, and even “wet-

lands” that are not waters at all, merely because of some ultra-tenuous

connection many steps removed from the navigable waters themselves,

would simply obliterate any limits on the Commerce power. Indeed,

even a tenuous connection would apparently not be necessary. Wholly

isolated waters, such as the gravel-pit puddles at issue in SWANCC,

would be “connected” to navigable waters by virtue of the fact that water

evaporates, forms clouds, and then at some point rains into navigable

waters.

22

soever with navigable waters, demonstrating that water qual-

ity, not navigability, was Congress’s chief concern. 33

C.F.R. § 328.3(a)(3); see also 33 U.S.C. § 1251(a). Thatisa

police power purpose, and reliance on the Commerce Clause

power is mere pretext for its exercise.

As the facts of these cases make amply clear, the protec-

tion of the health, safety, and welfare of the people—the tra-

ditional definition of the police power reserved to the States,

see, e.g., South Covington & C. St. R. Co. v. City of Coving-

ton, 235 U.S. 537, 546 (1915)—tequires a careful balancing

of competing concerns, a balancing that is best left to the

people and governments who will most directly bear the con-

sequences of the decision. See, e.g, Escanaba & Lake

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

(1883) (noting that the police power “can generally be exer-

cised more wisely by the states than by a distant authority”).

Here, the preservation of isolated wetlands (and the localized

ecologies that might arguably depend on them), is pitted

against the need for housing and the property rights of Peti-

tioners. The balancing of those competing interests was un-

dertaken here by the appropriate state authorities, and there

is not a hint of suggestion that in granting permits to Peti-

tioners the local authorities acted to favor their own state’s

citizens at the expense of citizens in other states, much less

at the expense of commerce in other states.

The process described above demonstrates the proper ex-

ercise of the state police powers in action. Given this

Court’s recent solicitude for the sovereignty of the States,

see, e.g., Printz v. United States, 521 U.S. 98 (1997); Semi-

nole Tribe of Florida v. Florida, 517 U.S. 44 (1996); Alden

v. Maine, 527 U.S. 706 (1999); College Sav. Bank v. Florida

Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666

(1999); Florida Prepaid Postsecondary Educ. Expense Bd.

v. College Sav. Bank, 527 U.S. 627 (1999), it would be odd

indeed if Congress could intrude upon the powers reserved to

23

the States, and hence on state sovereignty, in the much more

substantial way presented by the Corps’ interpretation of the

Clean Water Act at issue here.

That does not mean that without comprehensive and ex-

pansive federal regulation, a State, through the exercise of its

police powers, could immunize actions that have a detrimen-

tal effect in other states. Traditional tort and nuisance law

remains available. See, e.g., Brzonkala v. Virginia Polytech-

nic Institute and State University, 169 F.3d 820, 840 (4th

Cir. 1999), aff'd sub nom, United States v. Morrison, 529

U.S. 598 (2000); Missouri v. Illinois., 180 U.S. 208 (1901).

Even for waters that touch upon two or more States, the

States remain free to enter into agreements to regulate the

waters to their mutual benefit. See, e.g., Virginia v. Tennes-

see, 148 U.S. 503, 518 (1893) (describing an agreement to

drain a malarial district on the border between two States as

an example of an interstate agreement that could “in no re-

spect concern the United States”). And on the chance that

such an agreement might be made to the detriment of other

states, the Congressional consent requirement of the Com-

pacts Clause of Article I, Section 10 provides a sufficient

check. U.S. ConsT., ART. I, Sec. 10, cl. 3 (“No State shall,

without the consent of Congress, .. . enter into any agree-

ment or compact with another State, or with a foreign

power’); see also West Virginia ex rel. Dyer v. Sims, 341

U.S. 22, 27 (1951) (“A compact is more than a supple device

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

also a means of safeguarding the national interest’’).

In short, there is as little need for federal regulation here

as there is constitutional authority. That federal officials in

Washington, D.C., might weigh the various police power

concerns differently than the people of Michigan provides no

constitutional title for them to do so, especially where, as

here, the benefits and costs on both sides of the health, safety

and welfare equation are exclusively borne by the people of

24

Michigan. Our Consiittution leaves such decisions to the

States for good reason. The inference-upon-inference rea-

soning of the Corps and the Court of Appeals below should

not be allowed to alter that fundamental constitutional struc-

ture.

IV. The Department of Justice Should Have Confessed

Error Once This Court Issued Its Ruling in

SWANCC.

Although we are of the opinion that, under Lopez, the

Rapanos litigation was illegitimate from the outset, there was

at the time it was commenced at least a (barely) colorable

ground for the government’s position that Lopez and Morri-

son dealt with state criminal law, not environmental law, and

that somehow the Commerce Clause permitted a broader

scope of federal regulatory power in the latter context than in

the former. That argument was rebuffed pretty soundly by

this Court in SWANCC, but instead of dropping the criminal

prosecution in Rapanos I, and the subsequent civil actions at

issue here, the government adopted the astounding position

that SWANCC was limited to the “migratory bird rule” and

had nothing to say about other, equally tenuous connections

to interstate commerce being proffered as sources of the

broad regulatory power being asserted by the Corps of Engi-

neers—essentially ignoring the entire last section of this

Court’s opinion in SWANCC.

Nor did the government’s back-of-the-hand treatment of

SWANCC end with the Corps of Engineers overly-zealous

advocacy of its expansive claims of power. Once SWANCC

was decided, these cases called out for the government to

confess error, but the Department of Justice instead vigor-

ously pressed the matter in the Rapanos / criminal action,

both at the Court of Appeals and by successfully opposing

the petition for certiorari filed with this Court, and it contin-

ued to press the matter in the subsequent civil actions at issue

here.

25

We do not mean to suggest that government attorneys

should not be zealous advocates of the government’s well-

grounded positions. But zealous advocacy of positions that

are, at best, barely colorable is a different matter, or at least

should be. It may be that the Department of Justice now

views its role as simply that of advocate for its government

agency clients rather than for the Constitution. Compare

Confirmation Hearing on the Nominations of Larry D.

Thompson to be Deputy Attorney General and Theodore B.

Olson to be Solicitor General of the United States, Hearing

Before the S. Comm. on the Judiciary, 107th Cong. 127

(2001) (statement of Theodore Olson) (Sup. Doc. No.

Y4.J89/2:S.HRG. 107-250) (noting Justice Department's "re-

sponsibility to do everything it can within reason to defend

the constitutionality" even of statutes that President believes

to be unconstitutional), and “Presidential Authority to De-

cline to Execute Unconstitutional Statutes,” 18 Op. OFFICE

Or LEGAL Couns. 199 (1994) (“[I)f the President believes

that the Court would sustain a particular provision as consti-

tutional, the President should execute the statute, notwith-

standing his own beliefs about the constitutional issue”), with

Metro Broadcasting, Inc. v. Federal Communications Com-

mission, 497 U.S. 547, 551 (1990) (noting that, in an amicus

curiae brief filed by then-Acting Solicitor General Roberts,

the United States contended that a race-based allotment of

of the Respondent FCC to the contrary). If so, then the De-

partment should no longer benefit from the traditional defer-

ence that it has been afforded by this Court. See, eg,

Virginia Dep't of Ed. v. Riley, 106 F.3d 559, 566 (CA4 1997)

(Luttig, J., dissenting in an opinion adopted by the majority

at the rehearing en banc) (discussing the “traditional respect

accorded to the Department [of Justice]” by courts).

26

CONCLUSION

The decisions of the United States Court of Appeals for

the Sixth Circuit should be reversed. The Corps of Engi-

neers’ expansive interpretation of the Clean Water Act

should be invalidated.

Edwin Meese III John C. Eastman

214 Massachusetts Ave. N.E. Counsel of Record

Washington D.C. 20002 The Claremont Institute Center

Orange, CA 92866

(714) 628-2500

Counsel for Amicus Curiae The Claremont Institute

Center for Constitutional Jurisprudence

December 2, 2005