Interest of Amicus Curiae
The Mackinac Center for Public Policy is a Michigan-based, nonprofit, nonpartisan research and educational institute that advances policies fostering free markets, limited government, personal responsibility, and respect for private property. The Center is a 501(c)(3) organization founded in 1988.
Amicus curiae is in a unique position to discuss the instant cases, since the properties in question lie in Michigan, and since one of the Center’s staff members is a former head of the Michigan Department of Environmental Quality (MDEQ), the state agency that administers the Michigan wetlands program.
 This brief is filed with the written consent of all parties. No counsel for a party authored the brief in whole or in part, nor did any person or entity, other than the amicus curiae, its members or its counsel make a monetary contribution to the preparation or submission of this brief.
Introduction and Summary of Argument
There are estimated to be more than 100 million acres of wetlands in the contiguous United States. United States v. Gerke Excavating, Inc., 412 F.3d 804, 806 (7th Cir. 2005). Through its expansive regulatory definition, the Army Corps of Engineers (Corps) has claimed jurisdiction over a substantial portion of this vast acreage.
But this Court has made clear that under the Clean Water Act (CWA), Congress intended to assert jurisdiction over only those wetlands adjacent to and inseparably bound up with "navigable waters," where "navigable" waters that are, were, or could reasonably become navigable in fact. Solid Waste Agency of N. Cook County v. United States Army Corps of Eng’rs, 531 U.S. 159, 168 (2001) (SWANCC). None of the properties involved in the consolidated cases meets this Court’s definition of federally controlled wetlands, because the instant wetlands are not adjacent to and inseparably bound up with such navigable waters. As a consequence, the Corps has no jurisdiction over the instant wetlands.
Even if this Court now finds that the Corps’ claim of jurisdiction over the instant wetlands is in keeping with Congress’ intent, Congress would exceed its power under the Commerce Clause when the Corps’ regulation at issue, 33 C.F.R. § 328.3 (2005), is applied to the instant properties. The regulation is not limited to channels of interstate commerce, and attempts to justify the regulation by appealing to the "substantial effects" commerce test (most recently elaborated in Gonzales v. Raich, 545 U.S. ___; 125 S. Ct. 2195 (2005)) are not persuasive in the instant cases, because this regulation does not concern a market-related statute, as the "substantial effects" test requires.
Since all of the properties in these consolidated cases are located in Michigan, and since federal jurisdiction over the instant wetlands is improper, a review of Michigan wetlands law and regulations will likely be of some interest. It is clear that Michigan’s regulatory system generally mirrors the federal system, probably because Michigan’s laws must be similar to, and perhaps as stringent as, federal law in order for the state to retain a modicum of control over the fill-permitting process. Michigan’s permitting system is currently under review by the Environmental Protection Agency (EPA), and the EPA has demanded that Michigan make statutory changes, promulgate specific regulations, and issue attorney general opinions with foreordained results. This review process suggests the negative effect that federal CWA jurisdiction can have on our federalist system of government when that jurisdiction is construed too broadly.
Justice O’Connor recently explained the importance of limiting the power of Congress to regulate under the Commerce Clause:
We enforce the "outer limits" of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibility that "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."
Raich, 125 S. Ct. at 2221 (O’Connor, J., dissenting).
Exacerbating the federalist concerns presented in these cases is another constitutional issue: the nondelegation doctrine. Article I, Section 1 of the Constitution vests all "legislative powers herein granted . . . in a Congress of the United States." This Court has explained that the Constitution "permits no delegation of those powers." Whitman v. Am. Trucking Ass’n, Inc., 531 U.S. 457, 472 (2001). But this Court has historically held that Congress can constitutionally delegate rulemaking authority to an executive agency if Congress sets forth an "intelligible principle" to which that agency must conform. Id. Using this intelligible principle benchmark, this Court has not used the nondelegation doctrine to strike down a single federal law since 1935. See generally Panama Ref. Co. v. Ryan, 293 U.S. 238 (1935); Schechter Poultry Corp. v. United States, 293 U.S. 495 (1935).
In Whitman, Justices Stevens and Souter acknowledged that rulemaking is often the functional equivalent of legislative power. 531 U.S. at 488-89 (Stevens, J., concurring). They would hold that such delegations are generally proper. Justice Thomas, on the other hand, stated that "I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than ‘legislative.’ " Id. at 487 (Thomas, J., concurring). He expressed willingness "to address the question whether our delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers." Id.
The nondelegation issue is not overtly presented in either of the instant cases, since this Court granted certiorari solely on the statutory and Commerce Clause issues. But the nondelegation doctrine is worth prominent mention here since it appears that in SWANCC, this Court forewarned that it will not defer to agency rules that press the outer limits of Congress’ constitutional power unless Congress explicitly permitted that result in legislation. SWANCC, 531 U.S. at 172-73. Clearly, such agency rules are too important to be left to unelected and largely unaccountable agencies. In other words, where the limits of Congress’ constitutional powers are involved, "the significance of the delegated decision is simply too great for the decision to be called anything other than ‘legislative.’ " This conclusion is particularly true in the instant cases, where a rule promulgated by the Corps has substantially expanded the scope of federal jurisdiction.
This SWANCC doctrine is laudable as far as it goes, in that it at least exempts a subset of significant questions – constitutional questions – from the control of federal agencies. Unfortunately, the decision still leaves other significant questions within federal agencies’ control.
Regardless, as noted above, this Court need not reach the nondelegation issue. This Court’s recent rulings make clear that the Corps has overreached in its current statutory interpretation of Congress’ intent in the CWA, rendering invalid the Corps’ claim of jurisdiction in the instant cases. Even if this Court does rule that the Corps has properly carried out Congress’ intent by extending federal jurisdiction to the instant wetlands, Congress’ action would unconstitutionally exceed the power granted to Congress under the Commerce Clause.
 This discussion should not be taken to imply that amicus curiae agrees that Michigan wetlands laws and regulations represent optimal public policy.