Preliminary Thoughts on Rapanos and Federalism - Much Ado About Very Little:

Some observers hoped and others feared that the Rapanos case might rein in the virtually limitless theory of federal regulatory power that the Supreme Court embraced last year in Gonzales v. Raich. My preliminary reading of the Rapanos opinions suggests that such hopes and fears have turned out to be groundless. The Rapanos majority does not impose any constitutional limits on federal power. Nor does it increase protection for federalism provided by rules of statutory interpretation.

In Raich, the Court held that Congress' Commerc Clause power to regulate "Commerce . . . Among the several States" was broad enough to allow it to criminalize the possession of homegrown marijuana used for noncommercial medical purposes. For a good explanation of why the reasoning of Raich gives Congress virtually unlimited regulatory power (constrained only by constitutionally protected individual rights, but not by any notion of limited powers), see this article by co-blogger Jonathan Adler.

Rapanos does not Impose any Constitutional Limits on Federal Power.

Rapanos leaves the holding of Raich unchanged. Neither Justice Scalia in his plurality opinion nor Justice Kennedy addresses the constitutional issues raised by the property owners. Both rely exclusively on statutory interpretation arguments about the meaning of the Clean Water Act (CWA). They hold that Congress in the CWA DIDN'T give the Army Corps of Engineers the power to regulate any and all bodies of water, no matter how small or non-navigable. But that does not mean that it COULDN'T do so if it wanted to. Indeed, it is striking that Scalia's opinion does not even mention Raich, while Kennedy's does so only briefly, using it to justify interpreting the CWA to give the Corps greater regulatory authority than the plurality would allow.

Rapanos, Federalism, and Clear Statement Rules.

Rapanos also does little or nothing to limit congressional power through rules of statutory interpretation. There are two rules of construction by which the Rapanos majority could have constrained congressional power. The so-called "constitutional avoidance" canon requires courts to reject interpretations of a statute that "raise serious constitutional problems" unless there is a clear statement in the law that Congress intended it to be interpreted in that way. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 574 (1988); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 504 (1979) (requiring a "clear expression of an affirmative intention of Congress" before a statutory interpretation that raises serious constitutional questions can be accepted). The "federalism canon" requires a similar "unmistakably clear" statement of Congressional intent in statutes that "alter the usual constitutional balance between the States and the Federal Government." Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). In the 2001 SWANCC case, the Court relied on both canons in rejecting the Army Corps of Engineers' "migratory bird rule," which interpreted the CWA to give the Corps authority to regulate any isolated non-navigable waters that might be used by migratory birds.

Justice Scalia's plurality opinion briefly cites the two canons to buttress its interpretation of the CWA. However, Scalia mostly relies on a detailed textual analysis of the statute. His opinion does not hold that either canon would require rejection of the government's interpretation of the CWA even if the latter were otherwise persuasive. This is a significant omission, since previous avoidance canon cases specifically note that clear statement rules require courts to reject even "an otherwise acceptable construction of a statute" if endorsing it "would raise serious constitutional problems." DeBartolo, 485 U.S. at 574.

In any event, Scalia's treatment of the canons probably lacks precedential signifance and does not bind lower courts because Justice Kennedy specifically rejected it in his concurring opinion. Because Rapanos is a 5-4 decision, Kennedy's vote was decisive to the result. As Justice Roberts (who signed onto Scalia's interpretation of the CWA) points out in his concurring opinion, cases where there is no one opinion endorsed by a majority of the Court are governed by Marks v. United States, 430 U.S. 188 (1977). According to Marks:

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. Marks v. United States, 430 U.S. at 193.

In this case, Kennedy is almost certainly the justice who concurred on the "narrowest grounds," since his opinion places fewer restrictions on the Corps than Scalia's, and also provides a considerably less sweeping and more ambiguous interpretation of the CWA. Thus, Rapanos is unlikely to expand the application of the two avoidance canons to statutes that rely on Congress' Commerce Clause authority.

Perhaps even more importantly, both Kennedy and Scalia fail to consider the broader implications of Raich for the two clear statement canons. If Raich is correct and congressional Commerce Clause power is essentially unlimited, a statute that relies on a broad interpration of that power cannot "raise serious constitutional problems." There is no "problem" because there are no constitutional limits for Congress to infringe. Similarly it becomes almost impossible for Congress to write a statute that "alter[s] the usual constitutional balance between the States and the Federal Government." Under Raich, the "usual constitutional balance" is one where there are no structural limits to congressional authority. The only "usual constitutional balance" that can exist is whatever Congress decides on. Interestingly, the Court also failed to consider the impact of Raich on the two clear statement statement rules in this year's other federalism/statutory interpretation decision, Gonzales v. Oregon.

Some scholars, such as Columbia's Tom Merrill, have proposed a new rule under which courts could impose a federalism clear statement requirement even if there is no doubt that Congress has the constitutional power to regulate the activity in question. The Rapanos decision, however, does not endorse this approach or even mention it.

The implications of Raich for the two clear statement rules will have to be explored in some future case. For now, the post-Raich status quo remains essentially unchanged.

UPDATE: Georgetown professor Richard Lazarus also agrees that Kennedy's opinion will be the controlling one under Marks.