Broadside Attack on Governing
Terry H. Schwadron
June 2, 2023
News coverage and legal analysis following last week’s Supreme Court decision blocking enforcement of federal wetlands laws have made clear that the nation’s commitment to clean water is in trouble.
But it also made clear that the ever-more right-wing court majority is headed towards gutting enforcement efforts by agencies altogether.
What got equal notice about the Sackett v. EPA decision setting new limits on the Clean Water Act was the dissent by Justice Brett Kavanaugh, breaking from the conservative group, about the reasoning of the majority position.
While all nine justices agreed that in this case, the Idaho plaintiff could proceed with a building a house on a soggy lot with a creek that fed but was not part of a lake that could be regulated, only five agreed with writing the law in such a way that will put more than half the nation’s wetlands beyond federal enforcement powers. The majority created an interpretation seemingly at odds with the specific language of the Clean Water Act to require that enforced wetlands are physically attached to bodies of water.
Dissents by Kavanaugh and Elena Kagan said the reasoning used by the majority could affect protecting waterways from the Mississippi River, where levees separate wetlands from river to the Chesapeake Bay, which is fed by lots of small streams. According to the ruling, the government lacks power to regulate pollutants discharged away from a major waterway but that can find its way to the river, lake or ocean through streams and wetlands. Kavanaugh noted that the majority opinion by Justice Samuel Alito ignored the specific language of the law, something he usually cites.
Indeed, the law says protections should include “all waters of the United States.” Kagan likened the difference between enforceable waters and the property nearby to a leaky picket fence between properties.
As written, this opinion — based largely along the lines of a minority dissent by former Justice Antonin Scalia in a 2006 case — will significantly curtail the federal government’s ability to protect American waters.
More than Water is at Stake
If you care about clean water, this decision was a blow, regardless of partisan views about law.
Worse, if you care about a government that you elect to protect its citizens from exploitative voting rights, deteriorating civil rights, unfair labor practices, regulation of airlines, meat inspections and more, this decision is another big attack on the structure of what government is all about.
This on-again, off-again view towards selectively picking which historic precedent applies to the thinking of this right-wing majority again is spelling danger for federalism and citizen rights. The court has developed a bad habit of re-interpreting laws based on some random historic fact believed to have been in place at some magical point in the past.
Indeed, a Vox article takes on a different part of this Sackett decision — a concurring majority opinion by Justices Clarence Thomas and joined by Justice Neil Gorsuch, that has not gotten as much notice since it affirmed the opinion limiting the government’s powers of water pollution enforcement.
Thomas’ opinion “would so severely limit Congress’s power to legislate that he might as well have taken several volumes of the United States Code and lit them on fire,” according to the analysis.
Under the approach that Thomas lays out, lots of federal protections should be seen as outlaws by the Constitution, including any ban on child labor, any setting of minimum wages, federal laws protecting the right to unionize, bans on workplace discrimination, and nearly all other regulation of the workplace. It defends private business from regulation, eschews rules requiring health insurers to cover people with preexisting conditions or opposing any ban on whites-only lunch counters.
Thomas attacks what he calls the “New Deal era conceptions of Congress’ commerce power,” insisting that the court should return to a narrow understanding of Congress’ power to regulate the economy detailed in a 1918 decision known as Hammer v. Dagenhart that struck down a law prohibiting import of a goods produced by child laborers.
What Century Are We In?
Thomas argues that federal authority in interstate commerce extends solely to keeping highways, waterways and other channels “open and free from any obstruction to their navigation.” In other words, a chemical company could be free to dump deadly poisons into the Mississippi River so long as the poison did not prevent ships from traveling the river, the Vox analysis suggests.
Whatever the specific conditions that gave rise to that 1918 ruling, it is hard to think of manufacturing and commerce at all now as a purely local enterprise that does not involve interstate or even international reach for supplies or markets.
It couldn’t be the case that business excess is not meant to be regulated — as the examples show. With the change of business reach has come a change of regulation by federal agencies — as authorized repeatedly by Congress.
Nevertheless, we have a Supreme Court majority now that to pick selectively at history to rebuild a government — and a society — by destroying the current one. Do we really want a Supreme Court that believes that child labor and civil rights are beyond the law?
The concurrent opinion does not set out new law or ruling, of course, but it does drop seeds for a potential right-wing challenge of administrative law altogether, much in the way that Thomas’ concurrent thinking in the Dobbs abortion case appeared to invite further challenge of contraception laws.
Forget ethics scandals with this Supreme Court. It’s their thinking on the cross between law and the issues of the day are increasingly out of step not only with the times, but the century.
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