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.

Bryan DB:
6.19.2006 6:17pm
Bryan DB:
lots of bold in this post.
6.19.2006 6:18pm
Bryan DB:
Or at least there was. Mr. Somin, disregard the email I just sent. :-)
6.19.2006 6:21pm
CDA (mail):
Misleading article

Can anyone believe this misleading article on the case by Gina Holland? It says that Scalia, Roberts, Alito, and Thomas were in the dissent. That's simply wrong!
6.19.2006 7:26pm
CDA (mail):
I see she has now updated it to make it less misleading and removed some of the incorrect statements.
6.19.2006 7:47pm
The general Kennedy modus operandi established in Raich was to agree with the fundamental conservative position that Congress could only enact regulations "necessary and proper" to enumerated powers and that Courts had power to determine necessity and propriety, but to support rules of evidence and burdens of proof which rendered courts, in practice, fairly deferential to Congressional claims.

The practical upshot may be nothing more than an improvement in employment prospects for lawyers. Congress is now obligated to hire lawyers and various experts to supply defending the relationship between its laws and the Constitution's enumerated powers. But if it does so, the courts will nearly always, except in a few truly wacky cases, buy their claims.

This case was about statutory rather than constitutional interpretation. But the basic Kennedy approach, requiring some proof of relationship to authorized powers, but not a whole lot of proof, remains consistent.
6.19.2006 8:03pm
Ilya Somin:
The general Kennedy modus operandi established in Raich was to agree with the fundamental conservative position that Congress could only enact regulations "necessary and proper" to enumerated powers and that Courts had power to determine necessity and propriety, but to support rules of evidence and burdens of proof which rendered courts, in practice, fairly deferential to Congressional claims.

I think you may be confusing Kennedy's position in Raich with Scalia's. Scalia did indeed write a concurrence relying on the Necessary and Proper Clause and interpreting it more or less the way you indicate. Kennedy, however, signed on to Justice Stevens' majority opinion, which does not depend on the Necessary and Proper Clause, and is even more deferential to Congress than Scalia's is.
6.19.2006 8:08pm

Although given the nature of Justice Kennedy's concurrence in the judgment, for many practical purposes the plurality was in dissent. Basically, all they got from him was agreement on a remand.
6.19.2006 8:24pm
I understand that Kennedy sided with the Raich majority and did not write a separate concurrence. I regret any misimpression otherwise. Nonetheless, because Kennedy sided with the majority in Lopez, it is reasonable to suggest that his views form the pattern indicated.
6.20.2006 12:23am
logicnazi (mail) (www):
Good article on Raich. Though I am generally quite liberal I was actually a big Scalia fan until his deciscion in Raich. The discrepancy between this deciscion and the one in Lopez and Morrison is simply inexplicable unless you admit that Scalia's policy prejudices are heavily clouding his judgement.

Scalia's claim in Raich is that the regulation of MJ used in an entierly intrastate manner by one individual is justified by the Necessery and Proper clause. Yet in order for that justification to hold water congress must reasonably believe that this intrastate regulation of MJ is necessery to accomplish some valid congressional end. Yet unlike Wickard congress doesn't genuienly have any interstate goal in this case.

I mean one would need to be brain dead to believe that the CSA act is aimed at some commercial end involving interstate transit. Obviously the real end of congress is to control the use of drugs. The scheduling criteria themselves explicitly set the legal status of drugs based on their harm to the user and medicinal purpose and don't have the slightest reference to the nature of interstate traffic in those drugs.

Still one might argue that the Raich result is acceptable as congress has a valid interest in regulating the interstate component of drug laws (stopping drugs that might get people high from crossing state lines) and since reductions in the price of weed one place will encourage more interstate transportation the application of the law to the entierly intrastate case is justified. This argument is plausible but it is totally inconsistant with the results in Lopez and VAWA, or at least renders them trivial requiring only a differing congressional finding.

So what happens if congress decided to justify the guns free school act by saying, 'We want to do our part and stop guns that will be brought within 200 feet of a school from traveling in interstate commerce.' This gives congress the same sort of commerce clause nexus it had in Raich and furthermore it is undoubtedly true that if it was legal in one state to bring a gun within 200 feet of a school then this would affect the number of guns that will be used within 200 feet of a school which travel in interstate commerce. Thus in order to achieve this end it is necessery to outlaw guns within 200 feet of a school even if they have never been in interstate commerce.

The same argument (with a bit more difficulty) can be run in the VAWA situation. Just either pick the travel of people who will do violence against women between states or the movement of objects in commerce that will be used in these crimes.

These days there is an interstate trade in nearly every good. If congress is allowed to pick out a class of these goods based on purely intrastate effects, claim to have a commerce clause interest in preventing the interstate flow of items that have this effect and then use this to justify the intrastate regulation of this same type of object congress can regulate any intrastate activity it wants by just picking out the class of objects used in that activity which enter an interstate market.
6.20.2006 12:39am
Some Guy (mail):
Seems to be the emerging conventional wisdom is that Kennedy's concurrence is controlling because it is narrower. I would actually urge folks to read the opinions, rather than EDF's half-assed spin, and decide for thems.

After all, the plurality had the temerity to (1) define the term "waters" using a dictionary, and (2) restate the importance of the reasoning given in Riverside Bayview in determining whether a wetland should be considered a water.

And Justice Kennedy? Well, he (1) defined the term "navigable", and (2) imposed a new "significant nexus" test on whether a water is a wetland that didn't exist prior to his decision in either the case law (SWANCC/Riverside Bayview) or the statute. Um, yeah, that's a narrow holding...

Under BOTH the plurality and concurrence, the Corps' regulation is not legally sufficient. BOTH opinions overturn the lower courts' actions. BOTH impose new tests for whether a "wetland" is protected, with the difference being that one test had been previously used by the Court (albeit in what appears to be dicta) and the other was fabricated whole cloth.

I guess the main difference is that the enviros like Kennedy's half-assed "significant nexus" waffling, so it must be the narrow, controlling decision.
6.20.2006 9:29am
Hans Bader (mail):
The post of Some Guy above raises a valid point about whether Justice Kennedy's concurrence is technically controlling.

While Kennedy's concurrence is narrower in the limits placed on the Clean Water Act in most respects, it is not narrower in all (there are a few situations where the plurality's test defines parcels of land as wetlands but not Kennedy's concurrence), so it may not be the narrow, controlling decision under Marks. For it to be controlling under Marks, it would have to share a least common denominator with the plurality opinion.

The fact that Kennedy's concurrence is generally narrower in MOST cases is not enough to make it controlling under Marks, just as the fact that Justice Powell's deciding vote in Bakke rested on a generally narrower theory did not make the Grutter v. Bollinger court treat it as controlling 25 years later, since it was not narrower in ALL respects. (Grutter v. Bollinger purported to follow Powell's opinion in Bakke, but the Grutter majority said it did so as a matter of agreement with its reasoning, not based on Marks or stare decisis, since it questioned whether Powell's opinion in Bakke was controlling).
6.20.2006 11:27am