If this Court were to find that Congress intended to regulate wetlands like those of the petitioners’, this Court should nevertheless rule that Congress has exceeded its commerce power, since a nonadjacent wetland or a wetland that is not bound up with traditional navigable waters is not a channel of interstate commerce. Further, this Court should reject any attempt to use the "substantial effects" theory to justify the constitutionality of such a congressional action. This Court has countenanced this theory only when a market-based statute is being interpreted.

In Raich, this Court discussed Congress’ commerce power. There are three general categories under which Congress may engage its commerce power: (1) channels of interstate commerce; (2) instrumentalities of interstate commerce and persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce. Raich, 125 S. Ct. at 2205.

This Court clarified that the substantial effects test applies only to market-based statutes – a point that may prove dispositive in the instant cases. Raich involved a challenge to the Controlled Substances Act (CSA), and in that statute, Congress sought to "conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances." Id. at 2203. To achieve these goals, "Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance." Id. The petitioners in Raich were Californians who sought to use medical marijuana under a state law that allowed such use. The petitioners did not challenge the CSA in its entirety; rather, they challenged its application to them.

In Raich, this Court discussed Wickard v. Filburn, 317 U.S. 111 (1942), a case in which a farmer was prohibited from growing more wheat than permitted under a federal administrative mandate. There, the farmer was going to consume the excess wheat on his own farm, and he argued that Congress did not have the power to regulate the wheat that was intended for his home use. In Raich, this Court held that local activities may be regulated when those local activities would have a substantial effect on a national market:

Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic "class of activities" that have a substantial effect on interstate commerce. . . . When Congress decides that the " ‘total incidence’ " of a practice poses a threat to a national market, it may regulate the entire class. . . . In this vein, we have reiterated that when " ‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ "

. . .

Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself "commercial," in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

Id. at 2205-06 (some citations omitted).

This Court also distinguished two of its recent Commerce Clause cases: United States v. Lopez, 514 U.S. 549 (1995); and Morrison v. Brzonkala, 529 U.S. 598 (2000). In Lopez, this Court overturned the Gun-Free School Zones Act of 1990, and in Morrison, this Court overturned a provision of the Violence Against Women Act of 1994 that created a federal civil remedy for the victims of gender-motivated crimes of violence. In Raich, this Court clarified that the key concept was that neither case concerned economic statutes:

Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. "Economics" refers to "the production, distribution, and consumption of commodities." Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market.

Raich, 125 S. Ct. at 2211.

Justice Scalia concurred in Raich, but his analysis differed from that of the majority. Specifically, he believed that the substantial effects test was in reality a subset of Congress’ power to enact legislation under the Necessary and Proper Clause. But like the majority, Justice Scalia would not allow Congress to regulate local activity where no market is involved: "the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective." Id. at 2218 (Scalia, J., concurring).

Clearly, the CWA is not a market statute, since it does not deal with the production, distribution, and consumption of commodities. The pollutants being regulated are not commodities intended for purchase by consumers, and any emission of the "pollutants" would be incidental and haphazard – not an organized process of bringing commodities to market for sale. Therefore, the substantial effects test does not apply.

Respondents may argue that in reality the CWA is a regulation of interstate channels of commerce. And indeed, to the extent that the CWA is limited to waters that either are navigable, were navigable, or with reasonable effort could become navigable, the CWA is a permissible exercise of Congress’ commerce power, since these waters do constitute channels of interstate commerce. But Congress could not include wetlands that are not adjacent to the above waters or wetlands that are not inseparably bound up with such waters, because such wetlands do not constitute a channel of interstate commerce.

Respondents may argue that aggregated pollution from wetlands that are not adjacent or inseparably bound up with traditional navigable waters nevertheless produces a substantial effect on channels of interstate commerce. But this is an impermissible merger of two distinct Commerce Clause categories. Again, the substantial effects test is limited to market-based statutes. Therefore, if in enacting the CWA, Congress intended to regulate property like the petitioners’, it exceeded its powers under the Commerce Clause.