Washington, D.C. – The federalism revolution was again the focus of the Supreme Court today, as the Justices considered the constitutionality of an expansive interpretation of the Clean Water Act. The disputed interpretation purports to allow the Army Corps of Engineers to regulate even “intrastate and isolated waters” that could “be used as habitat by . . . migratory birds which cross state lines.” The Corps claims authority under the federal government’s power to regulate interstate commerce. The U.S. Court of Appeals for the Seventh Circuit accepted this argument in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, leading to today’s appeal.
The Center for Individual Rights (CIR) submitted an amicus brief in the case, arguing to the Supreme Court that its holding earlier this year in U.S. v. Morrison – in which CIR successfully challenged the Violence Against Women Act’s (VAWA) civil rights remedy – governs the Solid Waste case. Morrison held that the feds cannot regulate non-economic activity under the Constitution’s Commerce Clause simply because the activity has some indirect effect on interstate commerce. Given that holding, “it would be . . . strange to suggest that Congress can regulate non-economic acts that have some long-range effect on the ability of birds or insects to travel in interstate commerce,” CIR’s brief argues. The brief notes that the Corps’ interpretation would allow it to regulate even backyard bird feeders visited by migratory birds.
CIR General Counsel Michael Rosman, who argued Morrison before the Court, noted the irony in the Corps’ reasoning today: “Women cross state lines, but that alone was not enough to make VAWA’s civil rights remedy constitutional. It makes even less sense to say that the federal government can regulate any activity that affects birds, just because they can cross state lines.”
John Fehrenbach, co-author of CIR’s amicus brief, is at Winston & Strawn in Washington, D.C.