Topic: General

Rapanos, Raich, and Agency Discretion

One interesting question lurking in the background of some recent Supreme Court cases is the scope of discretion executive agencies receive when they assert very broad power over areas that are traditionally committed to state authority. Traditionally, under the Court’s landmark 1984 decision in Chevron v. Natural Resources Defense Council, courts are supposed to defer to an agency’s “reasonable” interpretation of its authority when the statute does not clearly speak to the question at issue. The question is, what happens when an ambiguous statute buts up against the outer boundaries of federal constitutional power?

After Gonzales v. Raich, the question was all the more pressing. Raich held that Commerce Clause concerns are at a low ebb when Congress regulates an interstate market “comprehensively.” In that context, when Congress finds that regulating local conduct is essential to the larger regulatory scheme, the majority in Raich said it will defer to Congress’s judgment. As Cato’s amicus brief in Rapanos argued:

If, after Raich, agencies can use legislative history, statutory purpose, or context to manufacture ambiguity nowhere apparent from the text of a statute, and if, in turn, agencies interpreting their power under “ambiguous” statutes are granted both the full quantum of deference owed to Congress under Raich and under Chevron, the potential for agency aggrandizement is immense, indeed.

In light of these and other concerns, we argued, Congress (at a bare minimum) must clearly state in the text of the statute that it intends to push the envelope of federal power before agencies can assume the power and discretion to step into an area traditionally regulated by states.

Scalia appears to take these concerns seriously. First, he notes: “Even if the phrase ‘the waters of the United States’ were ambiguous as applied to intermittent flows, our own canons of construction would establish that the Corps’ interpretation of the statute is impermissible.” In other words, the Court’s constitutional concerns trump agency discretion under an ambiguous statutes–even one that constitutes comprehensive regulation under Raich. This is an important qualification of the traditional Chevron test, one that reigns in the worst excesses of Raich.

Second, in footnote 9, Scalia underscores that before an agency can reach local conduct under a comprehensive regulatory program, Congress must clearly authorize it to do so in the statutory text. Only then will the Court consider whether the agency’s authority is consistent with the Constitution’s division of power between the federal government and states.

The troubling thing about Roberts’ concurrence is that, on one reading, he would appear to take a far more expansive view of agency discretion. He says:

Agencies delegated rulemaking authority under a statute such as the Clean Water Act are afforded generous leeway by the courts in interpreting the statute they are entrusted to administer. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984). Given the broad, somewhat ambiguous, but nonetheless clearly limiting terms Congress employed in the Clean Water Act, the Corps and the EPA would have enjoyed plenty of room to operate in developing some notion of an outer bound to the reach of their authority.

The proposed rulemaking went nowhere. Rather than refining its view of its authority in light of our decision in SWANCC, and providing guidance meriting deference under our generous standards, the Corps chose to adhere to its essentially boundless view of the scope of its power. The upshot today is another defeat for the agency.

Its far from 100% clear what kind of test Roberts envisions here. But the best reading is this: If the agency deliberates about its constitutional and statutory authority in a “limiting way” in the context of public notice and comment procedures, he would give the agency “generous” deference, even the EPA would draw lines different (and more expansive) than those that Scalia’s plurality opinion draws. In effect, Roberts would give an agency treading close to the constitutional boundary the same deference that the Court grants to Congress under Raich if the agency draws any limits, no matter how slight, on its authority–precisely the interpretive method we raise red flags about in our brief.

Supreme Court Trims Reach of the Clean Water Act, For Now

As noted, the Supreme Court decided the much anticipated consolidated Commerce Clause-flavored challenges to the Clean Water Act, Rapanos v. United States and Carabell v. United States, trimming back the scope of federal wetlands regulation. (Cato filed an amicus brief in support of the petitioners in Rapanos, which you can access here.) The decision is a mixture of equal parts good news and not-quite-so-good news.

The good news is Justice Scalia’s opinion for the court, joined by three other justices: the Chief, Justice Thomas, and Justice Alito. The not-quite-so-good news is the concurrence, written by Justice Kennedy–the all important fifth vote–which significantly qualifies Justice Scalia’s plurality decision, and the concurrence written by Chief Justice Roberts.

First, a bit of background.

 The Clean Water Act, among other things, regulates point source pollution (pollution discharged through a drain of some sort). The Act says regulators can impose criminal sanctions for any pollution into “navigable waters,” defined as “waters of the United States.” But one bit of the Act, imposing reporting requirements and such on state dredging programs, refers to federal waters “adjacent to” navigable water. Federal environmental regulators suggest, based on this apperance of the word “adjacent,” that the Act covers some non-navigable waters.

Indeed, federal regulators go much, much further than that. They argue that any land with a “hydrological connection” to navigable water is within federal regulatory authority. That means even a trickle of surface water or ground water that might eventually wend its way off a land-locked piece of property, trickling drops into a navigable body of water scores of miles away, or more, is within federal power. Hence, the prosecution of John Rapanos: A Michigan commercial developer, Mr. Rapanos dumped sand on one parcel of land in preparation for a real estate development. He was slapped with criminal charges–and threatened with jail time–because grains of that sand may be carried by rainwater through on old run-off drain and, after an epic journey through culverts, creeks and ditches, end up in the Kawkawlin River, twenty miles or so away.

Needless to say, this reading of the Clean Water Act stretches its text past the breaking point. Says Scalia’s opinion:

The extensive federal jurisdiction urged by the Government would authorize the Corps to function as a de facto regulator of immense stretches of intrastate land-an authority the agency has shown its willingness to exercise with the scope of discretion that would befit a local zoning board. We ordinarily expect a “clear and manifest” statement from Congress to authorize an unprecedented intrusion into traditional state authority. The phrase “the waters of the United States” hardly qualifies.

Likewise, the Corps’ interpretation stretches the outer limits of Congress’s commerce power and raises difficult questions about the ultimate scope of that power. Even if the term “the waters of the United States” were ambiguous as applied to channels that sometimes host ephemeral flows of water (which it is not), we would expect a clearer statement from Congress to authorize an agency theory of jurisdiction that presses the envelope of constitutional validity.

In sum, on its only plausible interpretation, the phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams[,] … oceans, rivers, [and] lakes.” The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.

Read by itself, the upshot of Scalia’s opinion is a significant victory for federalism. It rejects environmental regulators’ “hydrological connection” test for federal jurisdiction over wetlands and, furthermore, requires that regulated wetlands have a continuous, standing surface connection to navigable water. It recognizes, moreover, that the Clean Water Act is at the periphery of federal commerce power.

Unfortunately, the Chief Justice’s and Justice Kennedy’s concurring opinions muddy the water (bad puns not intended).

First Kennedy. Kennedy says the Clean Water Act doesn’t raise difficult questions of federal commerce power. Instead, based on a simple interpretation of the Act’s text and legislative purpose, he contends only that regulators lack control over any water–surface or ground, continually running or intermittent–without a “significant nexus” to navigable water. What this means exactly we don’t know. Kennedy wants the lower courts to come up with a significant nexus text–one more bite at the apple, in other words.

Chief Justice Roberts, moreover, invites the EPA to engage in formal notice and comment rulemaking (that’s legalese for a regulatory proceeding that announces a new rule after public input) about the scope of federal power over wetlands and suggests that if it engages in such rulemaking, it would deserve great leeway in the lines it draws. This is a very significant qualification, as it suggests he would be less inclined to second-guess the agency in such a case, even if it draws lines around federal authority that are different than the Court’s preferred lines. Roberts’ concurrence deepens my suspicion that he is more committed to a broad theory of agency discretion than any other justice on the Court, including Scalia.

Just a Bit of Harmless Schadenfreude?

In today’s “L.A. Story” editorial (subscription barrier), the Wall Street Journal criticizes Democratic legislators and teachers’ union officials for blocking an educational power grab by Democratic L.A. Mayor Antonio Villaraigosa.

Just a bit of harmless schadenfreude over Democratic infighting? Not really. In the process of painting Villaraigosa as victim and protagonist, the article perpetuates a dangerous myth: that mayoral or state takeovers of failing school districts are a worthwhile education reform.

The editorial points to districts like Boston and Chicago – widely regarded as successful takeovers – but ignores cases like Detroit and Paterson that were clear failures.

And how successful is Chicago, anyway? The “poster district” for takeovers, Chicago has not exactly become an educational Mecca over the past 11 years. A study of teacher quality released just last week found that “Chicago Public Schools fared particularly poorly…, with three-quarters of the campuses landing on the bottom of the pile.”

And how about the ultimate test? What share of entering Chicago high-school students are likely to go on to graduate from college by the time they’re 25? An April 2006 University of Chicago paper provides the answer: 6.5 percent. For African American boys, the figure is 2.5 percent.

What the children of Chicago, L.A., and every other American city and town need is not more central planning from the mayor’s office or the statehouse. What they need is the ability to easily kiss bad schools goodbye and transfer to better ones.

Private Schools Will Always Bail Out Public Schools

Picking up on a Washington Post article I blogged about a couple of weeks ago, in today’s New York Times columnist Brent Staples calls for public schools to get on the ball and provide a decent education for disabled kids. He also notes, though, that even if the public schools do markedly improve, “some severely disabled children will always need to be educated outside the public system.”

To many people, such a statement is practically heresy: Not only doesn’t Staples buy the rubbish dispensed by public schooling apologists that government schools must take all comers, he writes that public institutions will always need a private safety net to catch the most needy children.

This kind of reality-based heresy could easily get Mr. Staples rhetorically stoned by public school zealots. It’s also the kind of heresy that needs to be repeated over, and over, and over again.

Wetlands Ruling

As Jerry notes, today’s ruling is welcome news.

Justice Scalia writes the main opinion and here are a few gems: “The U.S. Army Corps of Engineers exercises the discretion of an enlightened despot.” The Corps’ power to grant property owners a permit to do things on their own property relies upon “such factors as “economics,” “aesthetics,” “recreation,” and “in general, the needs and welfare of the people.” Scalia notes “the average applicant for an individual permit spends 788 days and $271,596 in completing the process.”

Full Supreme Court ruling here. Cato brief in the case here. For more evidence of the despotism, go here or here.

It should be noted that the Bush administration was once again pushing a wildly expansive view of federal power in this case. Fortunately, it lost this one.

Slovak Election Update

Much of the world’s media portrayed the victory of the populist socialist party in the Slovak elections as the voters’ rejection of the free market reforms pursued by the center-right government of Prime Minister Mikulas Dzurinda. Not exactly.

First, the election turnout was only 55 percent (down from 70 percent in 2002). It is true that the socialists increased their support from 13.46 percent in 2002 to 29.14 percent in 2006. But the low election turnout means that the socialists had their program endorsed by only about 14 percent of eligible voters – hardly a ringing endorsement of a return to socialism.

Second, Dzurinda’s party did better than last time. It received 15.09 percent in 2002 and 18.35 percent this year. So did its coalition partners. Christian Democrats were up from 8.25 percent to 8.31 percent and the Hungarian minority party was up from 11.16 percent to 11.68 percent.

The real shockers were the reduction in the support for the Movement for Democratic Slovakia of the former Prime Minister Vladimir Meciar, which was down from 19.5 percent to 8.79 percent, and the rise of the Slovak National Party, which was not represented in the last parliament, but managed to get 11.73 percent in this year’s election.

The communists, who got 6.32 percent in 2002, did not make it to parliament. Unfortunately, the liberals who got 8.01 percent in 2002, did not make it to parliament either.

So, what does all of this mean?

As has been predicted, the three parties of the center right can count on 65 seats in the Slovak parliament of 150. They will thus be 11 seats short of a majority. The socialists will have 50 seats, but need 76 to form a government. With their racist, homophobic and socialist policies to the left of the communist party, the Slovak National Party will have 20 seats. That leaves Meciar and his 15 seats in the role of the kingmaker.

Ironically, Meciar’s worst electoral performance coincides with a huge increase of his party’s relevance for the future of Slovakia. If he throws his weight behind the socialist leader Robert Fico, he will, once again, take the country down the wrong path. If he goes into coalition with the center-right, the continuity of the liberal reforms will be assured. (Note: The Christian Democrats stated that they will not be in government with Meciar, because of his past authoritarianism. But, they might agree to give him in a largely symbolic role of the chairman of the Slovak parliament.)

The upshot is that under the Slovak electoral system, elections don’t conclude the process of political horse-trading. They begin that process. True, Fico, the socialist leader, will get the first crack at forming a government, but that does not mean much. Both in 1998 and in 2002, it was the second largest party in parliament that formed the government. In both cases, that party was Dzurinda’s party.

One can only hope that history repeats itself.

Supreme Court Deep-Sixes Federal Wetlands Regulation

From a news bulletin I just received from the enviro trade publication Greenwire:

Supreme Court limits reach of Clean Water Act in 5-4 ruling

A divided Supreme Court ruled this morning that Clean Water Act protection of “waters of the United States” is limited to “permanent, standing or continuously flowing” water. The ruling limits protection for wetlands separated from “navigable waters” or their tributaries.

Justice Anthony M. Kennedy cast the swing vote in the 5-4 ruling in the joint case, Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers.

This is a big win for the good guys!

More here.