Limiting Principles, Health Care, Wetlands and the search for a Nexus.

Listening to the analysis of the ACA -- okay, "Obamacare" -- verbal arguments yesterday, I began to get very strong feelings of deja vu.  In this case, it appears that Justice Kennedy is pressing General Verrilli, searching for a "limiting principle" that would allow the government its traditional latitude concerning commerce regulation while preventing a situation in which the government can simply transform any issue into one of commerce by requiring that it be solved through a commercial transaction.  Where is that bright line?

Anyone else thinking of the most traumatic elements of both SWANCC and Rapanos?

The SWANCC connection is obvious.  For those who don't follow wetlands law, SWANCC v. US Army Corps of Engineers (531 US 159) was the 2001 case in which the Supremes struck down the Corps' 1985  "migratory bird rule" which declared that since migratory birds are elements of interstate commerce (people spend millions of dollars to cross state lines and birdwatch), any wetland visited by a migratory bird is subject to federal regulation under the dormant commerce clause.  First, let's revisit Article I, section 8 of the Constitution:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

This was the only way that the Corps could require permits for impacts to waters that were fully isolated from navigable streams.  Most glaciated landscapes are full of such wet depressional areas, and they constitute the most valuable duck-breeding areas in the US.  But the rationale was always a stretch because it completely ignored navigability, which is near the foundation of the CWA's concept of "waters of the US".  It was a landmark case, and served as warning (mostly unheeded, to listen to General Verrilli yesterday) that there are limits to the dormant commerce clause: though it may be very sleepy, it must not be out cold.  The NPR commentary yesterday made it sound like limits to the commerce clause have been unheralded since the 1930s, but in fact judicial skepticism on this front was foreshadowed in the same Chicagoland glacial landscape that 8 years later produced SWANCC.  In his 1993 concurrence in Hoffman Homes, Inc. v. EPA (263 F.2d 999), Judge Manion wrote:

The commerce power as construed by the courts is indeed expansive, but not so expansive as to authorize regulation of puddles merely because a bird traveling interstate might decide to stop for a drink.

Rehnquist's opinion in SWANCC produced some really fun language and the opinion is worth reading in its entirety.  The later Rehnquist court was already notoriously intolerant of expansive readings of Commerce Clause authority, and he took this opportunity to spank the Feds, hard:

… there is nothing approaching a clear statement from Congress that it intended [Clean Water Act] §404(a) to reach an abandoned sand and gravel pit such as the one at issue. Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the Migratory Bird Rule would also result in a significant impingement of the States’ traditional and primary power over land and water use.

…neither this, nor anything else in the legislative history to which respondents point, signifies that Congress intended to exert anything more than its commerce power over navigation.

So it should be no surprise that the Court should be contemplating limits on Commerce Clause power.  But the real similarity between yesterday's argument and wetlands jurisprudence lies in Kennedy's search for a "limiting principle."   Or, "nexus", as we in the wetlands world know it.  Where is the bright line that separates areas relevant to navigability from those that are not?  Those that are, said Kennedy, have a nexus to navigability.  In 2006 Kennedy's concurring opinion in the Rapanos v. US (547 US 715) turned the world of wetlands jurisdiction upside-down by affirming, in his frustrating manner of intellectual purism, that regulators must articulate a definable "nexus" between a navigable water and the site of a proposed project for a permit to be required.  In so many ways, the Obamacare case looks like it's coming down as another Rapanos decision -- with the conservatives writing a conservative opinion, the liberals writing a liberal one, and Kennedy finding a way of drawing a bright line which ends up being the controlling opinion among a 4-1-4 mess of pluralities.  Rapanos produced no fewer than FIVE separate opinions, and Kennedy's ended up being the one that split the baby in just the right way.  Kennedy's solo concurrence ended up gathering more support than the plurality Scalia opinion because Stevens, in dissent, said some nice things about Kennedy's rationale.  Basically Kennedy and the conservatives formed a majority to overturn, but Kennedy and the liberals formed a majority finding that the nexus with navigability should be very broadly interpreted  So it was a big mess.  I was driving around suburban Boston the day it was released, frantically calling EPA HQ trying to figure out if we'd won or lost -- a week later, we still weren't sure.

The recent release of draft jurisdictional guidance by the EPA and Corps instructs field staff as to how to find the "nexus" between navigability and a site in question: it can be through a hydrologic connection, or it could be through a LACK of hydrologic connection if that barrier is what renders the wetland of service to navigability.  This kind of abstract thinking is the mark of Kennedy, and although it must infuriate both liberals and conservatives on the court, it certainly put the scientists to work in defining all the ways that ecological and hydrological features of wetlands could influence (create a "nexus" with) downstream navigability.  In many ways, Kennedy forced a question that everyone had been happy ignoring: what is the science of the natural phenomenon that create navigability?  Base your jurisdictional decision on that science, and all will be well.

But that's hard!  Yup.  Corps staff, once the new guidance is in place, will be forced to work much harder and document more fully the status of the proposed impact site.  Before 2001, all you had to do was look for a bird.  Such is life in the Kennedy Court.  His bright lines are sometimes ordained without regard to the kind of knowledge required to draw them in a practical sense.

So you heard it here first.  Everyone's expecting a simple Yes or No after yesterday's arguments.  But I expect Kennedy to author an opinion which agrees with the conservatives that the ACA overextends its reach, but then agrees with liberals in defining a nexus/limit that makes the command of health care markets allowable while disallowing other uses of federal commerce power.  All signs point to this being another situation in which Kennedy's search for underlying principles will hold the balance of power again.

And as a special and irresistable callback treat, here's the "nexus" between wetlands and broccoli, that vegetable much-maligned by George HW Bush in 1990, and now the hero of Scalia's arguments concerning Commerce Clause overreach: "Of Broccoli and Marshes" by Frank Graham in Audubon Magazine, July 1990.  Sorry, the images didn't photocopy well back in the day.


ps. Small ironies abound: Paul Clement, now arguing for the plaintiffs, was the Solicitor General who defended the government in Rapanos. Full disclosure: I wrote some of the science briefs that went to General Clement.