Strengthening Constitutional Self-Government

No Left Turns

Justice Kennedy Moves to Center Chair

As many predicted, Justice Samuel Alito’s replacement of Justice Sandra Day O’Connor has moved Justice Anthony Kennedy to the ideological center chair on the Court, and the Justice’s opinion concurring only in the judgment in Rapanos and Carabell today proves the significance of the “swing-vote” power he now wields.

The two cases involve expansive claims by the U.S. Army Corps of Engineers under the federal Clean Water Act to control local land use decisions many miles from navigable waters of the United States. Justice Kennedy joined with the outcome reached by Justice Scalia (writing for a plurality of Chief Justice Roberts and Justices Thomas and Alito) remanding for further consideration, but notably absent from Justice Kennedy’s opinion is any recognition that the limits of the Clean Water Act are defined not by a significant pollution nexus, as Kennedy prefers, but by the Constitution itself, which extends power to the federal government in order to regulate commerce among the states.

Chief Justice Rehnquist well understood the importance of interpreting environmental statutes against the constitutionally-authorized purpose, when in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, he devoted an entire section of the opinion to the Commerce Clause analysis. Justice Kennedy joined that opinion without reservation, but he now treats that important section as though it had never been penned. Justice Scalia’s opinion here picks up on the late Chief’s theme, noting that the Corps’ interpretation of the Clean Water Act “presses the envelope of constitutional validity.” The simple fact is that regulation of water pollution is, in our federal system, a function for the states and not for the federal government unless the pollution interferes with interstate commerce (and even then, for regional problems the Constitution’s sets out, as an intermediary step before nation-wide regulation, the ability of adjoining states to enter into multi-state compacts to deal with their common regional problems).

Ignoring the Constitution’s text is not a hopeful sign from any Justice, but it is particularly troubling from one who holds “swing-vote” power.

More discussion of the constitutional authority (or lack thereof) of the federal government to preempt state environmental laws under the supposed authority of the interstate commerce clause is available in an article I published last year in the CATO Supreme Court Review, which is available online at SSRN (click on download icon on the upper left).

Discussions - 8 Comments

It was pointed out to me in law school, those many moons ago, that, historically, when a conservative justice was appointed, a centerist justice would invariably move left and when a liberal justice was appointed, a centerist justice would invariably move right, to balance things out. Sandra Day O’Connor might be an excellent example of that. I was hoping Kennedy would be an exception to that rule, that the undeniable logic of justices Roberts, et al, would result in Kennedy shifting right rather than left. That he joined the "strict constructionists" in the outcome is encouraging. That he did not join them in their rationale is discouraging. It’s too early to tell.

just another Reagan appointee out doing his job

Hey Buddy,

Thnx for the information...

Justice Samuel Alito’s replacement of Justice Sandra Day O’Connor was very awaited.

I hope movement of Justice Anthony Kennedy to the ideological center chair on the Court, will prove to be of great help!

Let’s see what happens next

I, for one, am pleased at this blow to the administrative state. It may be small, but it’s a good start.

The constitution allows both interstate compacts and federal regulation, but doesn’t clearly create a hierarchy among them. You need to go far beyond the text in order to reach a contrary conclusion. Fine by me, but you should defend the move.

This kind of case is more difficult that you contend, John, because the destruction of wetlands does interfere with interstate commerce, by, say, harming commercial fishing industries. This case is an expression of the underlying tension between abstract, political, jurisdictional boundaries and natural systems that don’t respect those boundaries. The problem is so difficult that the constitutional question is often brought up indirectly - as here, where the question wasn’t directly whether CWA was constitutional, but the quality of the evidence of congressional intent authorizing a certain interpretation of CWA. Even Scalia’s invocation of the constitution is indirect.

John Eastman:

I am curious how you analyze Congress’ power to make treaties? Do you think it is possible that the treaty power gives it the power to do things that would violate the commerce clause? I am thinking of the Migratory Bird Treaty. What do you think of that case? If the treaty power does allow overiding of the commerce clause, then your concerns seem silly and have no substantive weight. The Senate could just enter into a multi national treaty concerning water quality (I am sure some exist), or even a bilateral treaty with Canada or Mexico. A treaty probably would not be necessary, a mere executive agreement could do the job.


What does that have to do with Justice Kennedy? How about you swallow some medicine and realize you don’t start topics here(and for good reason) you simply comment on them.


You are being silly. It has everything to do with the topic. The post claims the extension of section 404 of the CWA by the Army Corp to all wetlands violated the commerce clause and was therefore unconstitutional. It also claimed Justice Kennedy did not follow the text of the constitution (which is why I asked about the treaty portion of it). The post’s claim is similar to an argument against a law that Congress passed in the early 1900s regulating migratory birds. The Supreme Court found that migratory birds were not related to interstate commerce. Then Congress entered into a migratory bird treaty with Canada, and enacted laws to enforce the treaty which did the same exact thing as the previously unconstitutional law had done. The Supreme Court heard that case and decided the laws carrying out the treaty obligations were consitutional because they came from the treaty making power.

The previous CWA section 404 case dealing with these issues, SWANCC (cited in the post) just happened to deal with migratory bird watering and resting ponds in Illinois. In that case the Supreme Court said it seemed the regulating these would exceed the commerce clause, but it declined to decide the issue (since this would invalidate almost all modern Environmental laws, especially the ESA). If Congress could just make a treaty then all of this commerce clause concern is nonsense and pointless. It would procedurally affect the law, another power would have to be used to allow regulation of these things, but it seems there would be no constitutional impediment to CWA jurisdiction over any water (navigable, adjacent to navigable, or mere vernal pools). That was what I wanted to know.

If you wish to contact me so I can explain modern environmental law to you, feel free to do so. You seem to know so little about the CWA, section 404, the commerce clause, and the treaty making power, that you did not understand my question.

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