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Politics : View from the Center and Left -- Ignore unavailable to you. Want to Upgrade?

To: Ilaine who wrote (21595)	6/20/2006 4:28:25 PM
From: TimF	Respond to of 543851

Ilya Somin agrees with you in one of the links I posted on the issue - "Preliminary Thoughts on Rapanos and Federalism - Much Ado About Very Little: Some observers hoped and others feared that the Rapanos case might rein in the virtually limitless theory of federal regulatory power that the Supreme Court embraced last year in Gonzales v. Raich. My preliminary reading of the Rapanos opinions suggests that such hopes and fears have turned out to be groundless. The Rapanos majority does not impose any constitutional limits on federal power. Nor does it increase protection for federalism provided by rules of statutory interpretation. In Raich, the Court held that Congress' Commerc Clause power to regulate "Commerce . . . Among the several States" was broad enough to allow it to criminalize the possession of homegrown marijuana used for noncommercial medical purposes. For a good explanation of why the reasoning of Raich gives Congress virtually unlimited regulatory power (constrained only by constitutionally protected individual rights, but not by any notion of limited powers), see this article by co-blogger Jonathan Adler. Rapanos does not Impose any Constitutional Limits on Federal Power. Rapanos leaves the holding of Raich unchanged. Neither Justice Scalia in his plurality opinion nor Justice Kennedy addresses the constitutional issues raised by the property owners. Both rely exclusively on statutory interpretation arguments about the meaning of the Clean Water Act (CWA). They hold that Congress in the CWA DIDN'T give the Army Corps of Engineers the power to regulate any and all bodies of water, no matter how small or non-navigable. But that does not mean that it COULDN'T do so if it wanted to. Indeed, it is striking that Scalia's opinion does not even mention Raich, while Kennedy's does so only briefly, using it to justify interpreting the CWA to give the Corps greater regulatory authority than the plurality would allow."