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With the recent turnover in its personnel, it is increasingly clear that Justice Anthony M. Kennedy now occupies the enviable position of being the one swing vote on the U.S. Supreme Court. Nowhere was that point made more evident than in the recent 4-1-4 split in the closely watched pair of cases involving Michigan wetlands, Rapanos v. U.S.and Carabell v. U.S. Army Corps of Engineers. Both cases asked whether a party violates the Clean Water Act (CWA) by placing fill on remote wetlands that hydrologically connect to the navigable waters of the United States, but that are not adjacent to them. By regulation, the Army Corps treated these “intrastate wetlands” as “navigable waters of the United States” subject to its jurisdiction. The liberal bloc (justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer) dutifully deferred to this construction, which was flatly rejected by the conservative bloc (Justice Antonin Scalia, writing for Chief Justice John G. Roberts Jr. and justices Clarence Thomas and Samuel A. Alito Jr.), who sensibly thought that the waters (plural) referred to water in streams, rivers and lakes, but not any collection of water in ruts or mud holes. For all their differences, these two positions share the singular virtue of reaching an up-or-down conclusion on the Corps’ power. It was up to Kennedy to muddy the waters by insisting that the Corps had jurisdiction “if the wetlands, alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable in the traditional sense.” Since the liberal bloc preferred this reading to Scalia’s, back the case goes to the lower courts, where the betting here is that this magical nexus will indeed be found. Lurking behind this question of statutory construction lies the larger constitutional issue of whether Congress’ power under the commerce clause is sufficient to support even Kennedy’s view of the CWA. On this question a bit of history shows how far he and the liberal bloc have strayed from a sound understanding of the commerce power. In 1824, Chief Justice John Marshall first examined the clause’s reach in Gibbons v. Ogden. He concluded that commerce power covered all aspects of navigation spanning two or more states, and all business relations that this navigation fostered. That same year, in Corfield v. Coryell,Justice Bushrod Washington ruled that New Jersey could prevent citizens of other states from collecting oysters located in the banks of New Jersey’s navigable waters: “Commerce with foreign nations, and among the several states, can mean nothing more than intercourse with those nations, and among those states, for purposes of trade.” The commerce power thus carved out a federal shipping easement over navigable waters, but it contained “no cession . . . of territory, or of public or private property.” The oyster beds remained under exclusive state control. Fast forward 180 years, and it is clear that this original understanding of that power does not allow the United States to use bland wetland designations to regulate local lands or waters. Leave it to the states

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