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Our nation's founders feared that the consolidation of power in a central government would be dangerous to the liberty of us all, so they gave the national government power over those matters that could only be addressed at the national level. The regulation of a local dump, which is the focus of a case set for oral argument before the Supreme Court this fall, is not such a matter, not even remotely.
In Northern Illinois there is a 533-acre parcel of land that fifty years ago was home to a strip mine gravel pit. The municipal governments in 23 adjoining cities decided that the gravel pit would serve as an ideal location for disposal of the communities' non-hazardous waste, so they formed the Solid Waste Agency of Northern Cook County to obtain the necessary zoning and environmental permits.
In the years since the gravel pit closed, rainwater had accumulated in the various depressions and trenches left from the gravel mining operations, forming ponds — many only an inch deep — that would need to be filled before the site could be used for disposing of non-hazardous waste. The federal Clean Water Act requires that anyone who seeks to "fill" navigable waters of the United States first obtain a permit from the United State Army Corps of Engineers.
Although the gravel pit had no connection with any navigable waters of the United States, SWANCC asked the Army Corps of Engineers whether it needed a permit before filling the puddles. The Corps twice informed SWANCC that its puddles did not qualify as navigable waters or wetlands affecting navigable waters, so no permit was required. After learning that some species of migratory birds occasionally bathed in the gravel pit's puddles, however, the Corps asserted jurisdiction.
The presence of migratory birds, according to the Corps, enabled it to regulate the gravel pits' ponds under Congress's constitutional authority to regulate commerce among the states. The Corps then denied SWANCC's permit application, and SWANCC brought suit to challenge the Corps' assertion of jurisdiction. After both the district court and the Seventh Circuit Court of Appeals upheld the Corps' jurisdiction, the Supreme Court granted review, and will hear oral argument in SWANCC v. U.S. Army Corps of Engineers case on October 31.
In recent years, the Supreme Court has reinvigorated the founding idea that, under our Constitution, the national government was granted only specifically enumerated powers. Foremost among the powers not granted to the national government was the power to regulate the health, safety, and welfare of the people — the so-called "police" power. The national government does have the power to regulate commerce among the states, but even the Commerce Clause has limits, and it cannot be used as a pretext to exercise the police powers that were reserved to the states.
Even during the New Deal, when the Court's interpretation of the Commerce Clause was at its most expansive, the Court was careful to note that the power
may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them . . . would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.
These reservations were key to the recent Supreme Court decisions invalidating the Gun Free School Zone Act and the Violence Against Women Act, because neither statute had anything to do with interstate commerce. As in those cases, the interpretation of the Clean Water Act at issue in SWANCC does not regulate the channels or the instrumentalities of interstate commerce. Instead, the Seventh Circuit based its decision on the claim that the filling of some ponds would in the aggregate have a "substantial effect" on interstate commerce because it could eliminate the birds' habitat, causing a decline in the migratory bird populations, which would result in fewer people traveling across state lines to hunt, trap and observe the birds, causing a decline in expenditures made by such traveling bird hunters and bird watchers.
Merely repeating the syllogism demonstrates that the lower court piled "inference upon inference" to squeeze a police power purpose into a commerce clause box. As the Supreme Court has made clear, that box just does not hold the water that the Corps of Engineers would like to regulate here.
More is at stake than just the regulation of this Northern Illinois gravel pit. If the Supreme Court rules consistently with its holdings in Lopez and Morrison, and with the original understanding of the commerce clause, the Corp's migratory bird rule should be clipped of its wings and we will all regain some measure of lost liberty. If not, property owners of the nation better beware; those birds bathing in your koi ponds just might be the Corps' ticket to regulate your property, too.
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