Yesterday the Supreme Court handed down two victories for individual liberty and against regulatory overreach, in one case on the federal level and in the other on the local level.
In Sackett v. Environmental Protection Agency, which I discussed at the start of this term, the Court offered long-needed clarity on the meaning of “the waters of the United States,” the phrase that appears in the Clean Water Act’s definition of “navigable waters” to which the statute applies. The plaintiffs, Michael and Chantell Sackett, have endured a regulatory ordeal for the better part of two decades in the pursuit of their dream house in Idaho. It started when they backfilled the property on which they planned to build the house with dirt and rocks, only to be told by the EPA that doing so violated the Clean Water Act. The agency claimed that the property contained protected wetlands by virtue of being
“adjacent to” (in the sense that they are in the same neighborhood as) what it described as an “unnamed tributary” on the other side of a 30-foot road. That tributary feeds into a non-navigable creek, which, in turn, feeds into Priest Lake, an intrastate body of water that the EPA designated as traditionally navigable. [citation omitted]
Justice Anthony Kennedy’s concurrence in the judgment in a case that left the Court fragmented, Rapanos v. United States (2006), had advanced the notion that wetlands subject to the reach of federal regulation should have a “significant nexus” to traditionally navigable waters, a standard that has itself proven difficult for property owners to navigate. The EPA concocted a rationale by which the Sacketts’ lot was lumped together with nearby wetlands called the Kalispell Bay Fen and that those two “similarly situated” properties, taken together, had a significant effect on the ecology of Priest Lake. The agency actually admitted that “almost all waters and wetlands” are subject to potential regulation under the open-ended significant-nexus test.
By a 5–4 majority, the Court would have none of this. Examining the Clean Water Act’s text, structure, and statutory history, the majority agreed with the plurality opinion in Rapanos, which was written by Justice Antonin Scalia: The statute “extends to only those ‘wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right,’ so that they are ‘indistinguishable’ from those waters.” Quoting Webster’s Dictionary, the term “waters” includes “only those those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” The agency will not have jurisdiction over a wetland unless it is adjacent to a body of water that constitutes a “water of the United States” and with which it “has a continuous surface connection,” rendering it “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
Justice Brett Kavanaugh, joined by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, issued a concurrence in the judgment that disagreed with the majority’s construction and endorsed a broader view of Clean Water Act jurisdiction. He argued, with citations to past agency rules, that “adjacent” wetlands means more than “adjoining” wetlands—that being “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like” would not defeat jurisdiction. The majority responded that this expanded definition ignores the statute’s geographic limitation to “the waters of the United States.” Kavanaugh agreed, however, on the inadequacy of the significant-nexus test, and since the Sacketts’ property did not fall into his expanded conception of wetlands that would be subject to the act, he reached the same judgment in their favor.
Justice Clarence Thomas, besides joining the Court’s opinion, issued a concurrence with a reminder that federal authority “over certain navigable waters is granted and limited by the Commerce Clause.” It “does not displace States’ traditional sovereignty over their waters.” Past statutes and case law demonstrated that Congress’ authority over navigation was limited to a discrete set of navigable waters—“waters that are, were, or could be used as highways of interstate or foreign commerce.” It was not enough to show “mere ‘effects’ on interstate commerce” to trigger federal jurisdiction. Applying “well-established navigability rules,” it is clear that the “wetlands” on the Sacketts’ property cannot be federally regulated. Even nearby Priest Lake is a “purely intrastate” body of water that the government did not show to be “a highway of interstate or foreign commerce,” having relied “primarily upon interstate tourism and the lake’s attenuated connection to navigable waters.” Citing his 1995 concurrence in United States v. Lopez and his 2005 dissent in Gonzales v. Raich, Thomas criticized the Court’s Commerce Clause jurisprudence for “significantly depart[ing] from the original meaning of the Constitution.” Those were lone opinions. In this latest concurrence, Justice Neil Gorsuch joined him.
A second decision of the Court, in Tyler v. Hennepin County, repudiated abusive government behavior on the local level. Minnesota’s Hennepin County seized Geraldine Tyler’s property because she owed $15,000 in property taxes, interest, and penalties. It then sold the property for $40,000 and kept the $25,000 that remained after her debt was extinguished. In a unanimous decision by Chief Justice John Roberts, the Court held that selling the home to satisfy a government debt and keeping the surplus value as a windfall violates the Takings Clause, which is applicable to the states through the Fourteenth Amendment. While states have the power to tax, impose interest and late fees, and seize and sell property to recover money owed, the remaining value is property under the Takings Clause and therefore protected from uncompensated government appropriation. That “a government may not take more from a taxpayer than she owes” is a principle traceable to English law at least as far back as Magna Carta in 1215, Roberts explained. The same principle made its way into American law early on and remained through the ratification of the Fourteenth Amendment, besides being supported by longstanding case law. Even Minnesota law protected taxpayers’ right to surplus in other contexts, and this case involved an exception the state made “only for itself, and only for taxes on real property.” In its closing lines, the Court’s opinion quipped, “The taxpayer must render unto Caesar what is Caesar’s, but no more.”
Because the plaintiff was found to have stated a plausible claim on that ground, the Court did not consider a second question presented—whether the forfeiture of property worth far more than needed to satisfy a debt plus interest, penalties, and costs is a fine within the meaning of the Eighth Amendment. But Justice Gorsuch, joined by Justice Jackson, issued a concurrence suggesting that the statutory scheme at issue did trigger analysis under the Eighth Amendment’s prohibition of excessive fines.
It was a good day for the Court—and encouraging to encounter unanimity among the justices in a high-profile property rights case.